Case: 12-1461 Document: 00116514022 Page: 1 Date Filed: 04/08/2013 Entry ID: 5724362
NO. 12-1461
IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ______
UNITED STATES OF AMERICA, APPELLEE
V.
TAREK MEHANNA, APPELLANT ______
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ______
BRIEF FOR THE UNITED STATES ______
CARMEN M. ORTIZ MYTHILI RAMAN United States Attorney Acting Assistant Attorney General District of Massachusetts Criminal Division
JOHN P. CARLIN DENIS J. MCINERNEY Acting Assistant Attorney Acting Deputy Assistant Attorney General General Criminal Division National Security Division ELIZABETH D. COLLERY JOSEPH F. PALMER Attorney, Appellate Section JEFFREY D. GROHARING Criminal Division Attorneys U.S. Department of Justice National Security Division 950 Pennsylvania Ave., N.W., Room 1264 Washington, DC 20530 (202) 353-3891 [email protected] Case: 12-1461 Document: 00116514022 Page: 2 Date Filed: 04/08/2013 Entry ID: 5724362
TABLE OF CONTENTS
JURISDICTIONAL STATEMENT...... 1
STATEMENT OF THE ISSUES...... 1
STATEMENT OF THE CASE...... 3
STATEMENT OF FACTS...... 6
1. Overview...... 6
2. Mehanna Radicalizes: “Make Death What You Seek”...... 7
3. Mehanna’s “Good Crew”...... 10
4. The 9/11 Attacks: “This Mission So Blessed”...... 10
5. Mehanna Goes To Yemen In Search Of Al-Qa’ida And Jihad: “We’re Actually Doing it”...... 11
6. Doing What We Can “While We’re Stuck Here”...... 18
A. Mehanna Trolls For New Jihadists Among Local Youth...... 19
B. Mehanna Joins the “Media Wing” of Al-Qa’ida In Iraq...... 20
7. Maldonado Calls Mehanna To Jihad In Somalia: “There’s No Other Life Except For This”...... 26
8. Mehanna Attempts To Avoid Detection, Lies To The FBI And Works To Get Everyone “On The Same Page”...... 28
9. The Defense Case...... 30
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SUMMARY OF ARGUMENT...... 33
ARGUMENT...... 39
I. MEHANNA’S “NON-SPEECH” CHALLENGES LACK MERIT...... 39
A. Overwhelming Evidence Regarding The Yemen Trip Supports Mehanna’s Convictions On Counts I-IV...... 39
1. Standard Of Review...... 39
2. The Purpose Of The Yemen Trip...... 40
3. An Intent To Commit Murder...... 44
4. A Substantial Step...... 45
5. An Al-Qa’ida Link...... 47
6. Mehanna’s Claim That He Did Not Intend Or Agree To Kill While Abroad...... 48
7. The “Legal Impossibility” Claim...... 49
B. The Attorney General Was Not Plainly Required To Issue A Certification Under 18 U.S.C. 2332(d) In Connection With Counts II and III...... 52
C. The Court Should Reject Mehanna’s Variance Claims And Evidentiary Challenges...... 53
1. Standards of Review...... 53
2. Co-Conspirators In The United Kingdom...... 54
3. Evidence Regarding The Domestic Attacks...... 56
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4. Abousamra’s Trips To Pakistan...... 57
5. Mehanna’s Discussion With Maldonado And Hammami...... 58
6. Abuzahra’s Statements To Masood About Why He Returned From Abroad...... 59
7. Abousamra’s Statements Before And After The Yemen Trip...... 60
II. THE COURT SHOULD REJECT MEHANNA’S FIRST AMENDMENT ARGUMENTS...... 61
A. Mehanna’s Sufficiency-Of-The-Evidence Challenge...... 61
1. The Jury’s General Guilty Verdicts On Counts I-III Eliminate Any Sufficiency Challenge Related To Mehanna’s “Speech” Activities...... 61
2. The Evidence Relating To Mehanna’s Propaganda Campaign Was Sufficient To Sustain The Jury’s Verdicts On Counts I-III...... 63
a. Holder v. Humanitarian Law Project...... 63
b. The Sufficiency Of The Evidence...... 66
B. Mehanna’s Jury Instruction Challenges...... 69
1. No Instructional Error Occurred...... 71
2. Any Instructional Error Relating To Mehanna’s Propaganda Activities Was Harmless...... 75
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III. MEHANNA’S TRIAL ERROR CLAIMS LACK MERIT...... 77
A. The District Court Properly Admitted Evidence Under Fed. R. Evid. 403...... 77
B. No Brady Violation Occurred...... 86
C. The District Court Did Not Abuse Its Discretion In Excluding Expert Testimony...... 88
1. Background...... 88
2. Discussion...... 89
IV. MEHANNA’S LIES ABOUT MALDONADO WERE MATERIAL...... 92
V. MEHANNA’S “SPILLOVER” CLAIM LACKS MERIT...... 94
VI. MEHANNA’S BELOW-GUIDELINES SENTENCE SHOULD BE UPHELD...... 95
A. The Sentencing Proceeding...... 95
B. Discussion...... 98
CONCLUSION...... 101
CERTIFICATE OF COMPLIANCE...... 103
CERTIFICATE OF SERVICE...... 104
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TABLE OF AUTHORITIES
FEDERAL CASES
Bachellar v. Maryland, , 397 U.S. 564 (1970)...... 69
Brady v. Maryland, 373 U.S. 83 (1963)...... 3, 87
Brandenburg v. Ohio, 395 U.S. 444 (1969)...... 65
Brogan v. United States, 522 U.S. 398 (1998)...... 93
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)...... 88
Dennis v. United States, 341 U.S. 494 (1951)...... 62
Griffin v. United States, 502 U.S. 46 (1991)...... 62, 69
Hedgpeth v. Pulido, 555 U.S. 57 (2008)...... 75
Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)...... passim
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)...... 89
Kungys v. United States, 485 U.S. 759 (1988)...... 93
McConnell v. Federal Election Commission, 540 U.S. 93 (2003)...... 67
Neder v. United States, 527 U.S. 1 (1999)...... 75, 76
Peugh v. United States, Supreme Court No. 12-42...... 100
Pinkerton v. United States, 328 U.S. 640 (1946)...... 45
Skilling v. United States, 130 S.Ct. 2896 (2010)...... 75
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Smith v. Cain, 132 S.Ct. 627 (2012)...... 87
United States v. Abu Jihaad, 630 F.3d 102 (2d Cir. 2010) ...... 82, 84
United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008)...... 85
United States v. Allen, 670 F.3d 12 (1st Cir. 2012)...... 70
United States v. Amawi, 695 F.3d 457 (6th Cir. 2012)...... 45
United States v. Bailey, 405 F.3d 102 (1st Cir. 2005)...... 70
United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972)...... 94
United States v. Benkahla, 530 F.3d 300 (4th Cir. 2008)...... 85
United States v. Burgos, 254 F.3d 8 (1st Cir. 2001) ...... 45
United States v. Capes, 486 F.3d 711 (1st Cir. 2007)...... 62
United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012)...... 40
United States v. Coppola, 671 F.3d 220 (2d Cir. 2012), cert. denied, 133 S.Ct. 843 (2013)...... 76
United States v. Cruzado-Laureano, 404 F.3d 470 (1st Cir. 2005)...... 99
United States v. David, 940 F.2d 722 (1st Cir. 1991)...... 72
United States v. DeCicco, 439 F.3d 36 (1st Cir. 2006)...... 54
United States v. DeCologero, 530 F.3d 36 (1st Cir. 2008) ...... 87
United States v. Dellosantos, 649 F.3d 109 (1st Cir. 2011)...... 56, 57
United States v. Diaz, 300 F.3d 66 (1st Cir. 2002)...... 40
United States v. Dixon, 449 F.3d 194 (1st Cir. 2006)...... 47
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United States v. Doyon, 194 F.3d 207 (1st Cir. 1999)...... 46
United States v. Edgar, 82 F.3d 499 (1st Cir. 1996)...... 92
United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011), cert. denied, 133 S.Ct. 525 (2012)...... 80, 82, 84
United States v. Farhane, 634 F.3d 127 (2d Cir. 2011)...... 45
United States v. Felton, 417 F.3d 97 (1st Cir. 2005), cert. denied, 132 S.Ct. 2378 (2012)...... 84
United States v. Gentles, 619 F.3d 75 (1st Cir. 2010)...... 78
United States v. Gilman, 478 F.3d 440 (1st Cir. 2007)...... 99
United States v. Goergen, 683 F.3d 1 (1st Cir. 2012)...... 98
United States v. Hallock, 941 F.2d 36 (1st Cir. 1991)...... 54
United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) ...... 85
United States v. Hassoun, 476 F.3d 1181 (11th Cir. 2007) ...... 50
United States v Hirst, 2012 WL 3583044 (N.D. Cal. Aug. 20, 2012)...... 94
United States v. Innamorati, 996 F.2d 456 (1st Cir. 1993)...... 87
United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011) ...... 51
United States v. Kumar, 617 F.3d 612 (2d Cir. 2010)...... 100
United States v. Maloney, 71 F.3d 645 (7th Cir. 1995)...... 73
United States v. Mangual-Santiago, 562 F.3d 411 (1st Cir. 2009)...... 53
United States v. Maryea, 704 F.3d 55 (1st Cir. 2013)...... 68
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United States v. McBane, 433 F.3d 344 (3d Cir. 2005)...... 93
United States v. McKeeve, 131 F.3d 1 (1st Cir. 1997)...... 80
United States v. Medina-Martinez, 396 F.3d 1 (1st Cir. 2005)...... 40
United States v. Meises, 645 F.3d 5 (1st Cir. 2011)...... 42
United States v. Merlino, 592 F.3d 22 (1st Cir. 2010)...... 40
United States v. Mubayyid, 658 F.3d 35 (1st Cir. 2011)...... 54, 84
United States v. Najera Jimenez, 593 F.3d 391 (5th Cir. 2010)...... 93
United States v. Neder, 197 F.3d 1122 (11th Cir. 1999)...... 93
United States v. Nestor, 574 F.3d 159 (3d Cir. 2009)...... 73
United States v. Newton, 326 F.3d 253 (1st Cir. 2003)...... 55
United States v. Olano, 507 U.S. 725 (1993)...... 54
United States v. Olbres, 61 F.3d 967 (1st Cir. 1995)...... 40
United States v. Ortland, 109 F.3d 539 (9th Cir. 1997)...... 100
United States v. Paulino, 445 F.3d 211 (2d Cir. 2006)...... 86
United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977) ...... 56
United States v. Pierre, 484 F.3d 75 (1st Cir. 2007) ...... 54, 56
United States v. Rivera-Donate, 682 F.3d 120 (1st Cir. 2012)...... 59
United States v. Rodriguez, 525 F.3d 85 (1st Cir. 2008)...... 54
United States v. Rodriguez, 630 F.3d 39 (1st Cir. 2010)...... 98, 101
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United States v. Saccoccia, 58 F.3d 754 (1st Cir. 1995)...... 57, 60
United States v. Safavian, 649 F.3d 688 (D.C. Cir. 2011)...... 93
United States v. Salameh, 152 F.3d 88 (2d Cir. 1998)...... 84
United States v. Sasso, 695 F.3d 25 (1st Cir. 2012) ...... 70
United States v. Sebaggala, 256 F.3d 59 (1st Cir. 2001)...... 92
United States v. Seng Tan, 674 F.3d 103 (1st Cir. 2012)...... 53
United States v. Service Deli Inc., 151 F.3d 938 (9th Cir. 1998)...... 93
United States v. Shaw, 670 F.3d 360 (1st Cir. 2012)...... 40, 41
United States v. Shay, 57 F.3d 126 (1st Cir. 1995)...... 89, 90
United States v. Shinderman, 515 F.3d 5 (1st Cir. 2008)...... 78
United States v. Siddiqui, 699 F.3d 690 (2d Cir. 2012)...... 52
United States v. Siddons, 660 F.3d 699 (3d Cir. 2011)...... 100
United States v. Skilling, 638 F.3d 480 (5th Cir. 2011), cert. denied, 132 S.Ct. 1905 (2012)...... 76
United States v. Spock, 416 F.2d 165 (1st Cir. 1969)...... 66
United States v. Stefanik, 674 F.3d 71 (1st Cir.), cert. denied, 132 S.Ct. 2118 (2012)...... 70
United States v. Stevens, 640 F.3d 48 (1st Cir. 2011)...... 92
United States v. Symonevich, 688 F.3d 12 (1st Cir. 2012)...... 70
United States v. Tavares, 705 F.3d 4 (1st Cir. 2013)...... 53, 78, 100
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United States v. Tobin, 480 F.3d 53 (1st Cir. 2007)...... 69
United States v. Trainor, 477 F.3d 24 (1st Cir. 2007)...... 95
United States v. Turner, 551 F.3d 657 (7th Cir. 2008)...... 93
United States v. Weiss, 630 F.3d 1263 (10th Cir. 2010)...... 100
United States v. White, 270 F.3d 356 (6th Cir. 2001)...... 93
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003)...... 52
United States v. Zannino, 895 F.2d 1 (1st Cir. 1990)...... 55
Yates v. United States, 354 U.S. 298 (1957)...... 63
FEDERAL STATUTES and RULES
18 U.S.C. 956 ...... 2, 4, 5, 77
18 U.S.C. 1001...... 5
18 U.S.C. 1001(a)(2)...... passim
18 U.S.C. 2332 ...... 4, 48
18 U.S.C. 2332(b) ...... 48, 52
18 U.S.C. 2332(d)...... 1, 34, 52
18 U.S.C. 2339A...... passim
18 U.S.C. 2339A(b)(1)...... 64
18 U.S.C. 2339B...... 4
18 U.S.C. 2339B(a)(1)...... 64
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18 U.S.C. 3231...... 1
18 U.S.C. 3553A...... 39, 97
18 U.S.C. 3742(a)...... 1
28 U.S.C. 1291...... 1
Fed. R. Crim. P. 52(b)...... 53, 54
Fed. R. Evid. 403...... 3, 37, 77
Fed. R. Evid. 801(d)(2)(E)...... 34, 57, 59
Fed. R. Evid. 804(b)(3)...... 58
FEDERAL SENTENCING GUIDELINES
Sentencing Guidelines Ch. 3 Pt. D...... 95
Sentencing Guidelines § 5, Part A, n.2...... 95
Sentencing Guidelines § 1B1.11...... 98, 99
Sentencing Guidelines § 2A1.5...... 95, 98, 101
Sentencing Guidelines § 3A1.2(a)(1)(A)...... 96
MISCELLANEOUS
Webster's Third New International Dictionary (1993)...... 67
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JURISDICTIONAL STATEMENT
This is an appeal from a final judgment of conviction and sentence. The
district court (Hon. George A. O’Toole, Jr.) had jurisdiction under 18 U.S.C. 3231
and entered judgment against defendant Tarek Mehanna on April 13, 2012.
D432.1 Mehanna filed a timely notice of appeal on April 13, 2012. D433. This
Court has jurisdiction under 28 U.S.C. 1291 and 18 U.S.C. 3742(a).
STATEMENT OF THE ISSUES
1. Whether the evidence regarding Mehanna’s plan to travel overseas to
receive training from and fight for Al-Qa’ida was sufficient to support Mehanna’s
convictions for conspiring to provide and attempting to provide material support
to terrorists and for conspiring to murder persons overseas (Counts I-IV).
2. Whether the district court plainly erred in failing sua sponte to find
that Counts II and III, which charge Mehanna with conspiring to provide and
providing material support to terrorists under 18 U.S.C. 2339A, required the
Attorney General to issue a written certification pursuant to 18 U.S.C. 2332(d).
3. Whether all participants in Mehanna’s conspiracy to murder persons
1Government exhibits are referred to as “GX”; transcript cites contain the volume number and page number separated by a “/”; “D” refers to the docket number below. Because Mehanna and his associates used multiple aliases and email addresses, an Chart of Identities is attached as an addendum.
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overseas in violation of 18 U.S.C. 956 were themselves overseas and, if so,
whether that fact would make it “legally impossible” for that conspiracy to serve
as the contemplated offense for Mehanna’s convictions in Count II and III for
conspiring to provide and providing material support to terrorists in violation of
18 U.S.C. 2339A.
4. Whether the evidence against Mehanna prejudicially varied from the
facts alleged in the indictment.
5. Whether the district court abused its discretion in admitting (1)
evidence regarding Abousamra’s trips to Pakistan; (2) testimony regarding a
discussion between Mehanna, Maldonado and Hammami in Egypt in 2006; (3)
Masood’s statements to Abuzahra regarding why Masood abandoned the Yemen
trip; and (4) statements from Abousamra before and after the Yemen trip; and, if
so, whether any relief is required under the harmless or plain error standards.
6. Whether, given the jury’s general guilty verdicts on Counts I-III, this
Court needs to determine if the evidence relating to Mehanna’s propaganda
campaign was sufficient to sustain those counts, and, if so, whether this evidence
sufficed to support Mehanna’s convictions for Counts I-III.
7. Whether the district court erred in refusing to give Mehanna’s
proposed First Amendment jury instructions.
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8. Whether the district court abused its discretion in refusing to exclude
evidence under Federal Rule of Evidence 403, and, if it did, whether any error was
harmless.
9. Whether the district court abused its discretion in rejecting
Mehanna’s claim for disclosure of exculpatory evidence under Brady v. Maryland,
373 U.S. 83 (1963).
10. Whether the district court abused its discretion in excluding expert
testimony and, if it did, whether any error was harmless.
11. Whether Mehanna’s false statements regarding Maldonado’s
whereabouts and terrorist activities were material.
12. Whether, assuming any of Mehanna’s convictions are reversed,
convictions on the remaining counts must also be reversed because of prejudicial
spillover of evidence.
13. Whether Mehanna’s below-Guidelines sentence was imposed in
violation of the Ex Post Facto Clause.
STATEMENT OF THE CASE
On June 17, 2010, a federal grand jury sitting in the District of
Massachusetts returned a Second Superseding Indictment against defendant Tarek
Mehanna (D83), charging him with the following offenses:
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Count I charged Mehanna and Ahmad Abousamra with conspiring
beginning in 2001 to provide material support and resources to Al-Qa’ida, a
foreign terrorist organization (FTO), in violation of 18 U.S.C. 2339B. This count
alleged overt acts relating to, inter alia, efforts by Mehanna and/or Abousamra to
obtain military training from terrorists in Pakistan and Yemen in order to fight and
kill U.S. nationals; to recruit others in the Boston-area to the terrorist cause; to
translate and distribute Al-Qa’ida messages intended to inspire violent jihad; and
to knowingly provide false information to the Federal Bureau of Investigation
(FBI). D83(1-10).
Count II charged Mehanna and Abousamra with conspiring beginning in
2001 to provide material support and resources to terrorists and to conceal such
support, knowing and intending that the material support was to be used in
preparation for and in carrying out violations of (1) 18 U.S.C. 956 (conspiracy to
kill in a foreign country); and (2) 18 U.S.C. 2332 (extraterritorial homicide of a
U.S. national), in violation of 18 U.S.C. 2339A. It alleged overt acts involving,
inter alia, the same activities alleged in Count One. D83(10-18).
Count III charged Mehanna and Abousamra with providing and attempting
to provide (and with aiding and abetting the provision of) material support to
terrorists, and with concealing such support, knowing and intending that the
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material support was to be used in preparation for and in carrying out violations of
Sections 956 and 2332, in violation of 18 U.S.C. 2339A. D83(19).
Count IV charged Mehanna and Abousamra with conspiring to kill in a
foreign country, in violation of 18 U.S.C. 956. It alleged overt acts relating to,
inter alia, efforts by Mehanna and/or Abousamra to obtain military training from
terrorists in Pakistan and Yemen in order to fight and kill U.S. nationals. D83(20-
22).
Count V charged Mehanna and Abousamra with conspiring to make
materially false statements and to conceal material information concerning matters
within the jurisdiction of the Executive Branch of the United States, in violation of
18 U.S.C. 371 and 1001. D83(23-25).
Count VI charged Mehanna with making false statements regarding the
whereabouts and activities of Daniel Maldonado, in violation of 18 U.S.C.
1001(a)(2). D83(26-27).
Count VII charged Mehanna with making false statements in connection
with a terrorism investigation, in violation of 18 U.S.C. 1001(a)(2). The false
statements charged related to the purpose and intended destination of Mehanna’s
trip to Yemen in 2004. D83(28-29).
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After 37 days of trial (between October 24, 2011 and December 20, 2011),
the jury returned a guilty verdict on all counts. D422. On April 12, 2012, the
district court sentenced Mehanna to 210 months’ imprisonment and seven years of
supervised release. D432.
STATEMENT OF FACTS
1. Overview
Tarek Mehanna led a double life. Raised as a “typical American kid,”
35/109, Mehanna embraced radical Islam in his teens and never looked back.
While living comfortably in the Boston suburbs and studying pharmacy, Mehanna
seethed over perceived transgressions against Muslims and secretly plotted
revenge. In 2004, he traveled to Yemen, intending to train with Al-Qa’ida and
fight against Americans in Iraq. When his plan failed, Mehanna devoted himself
to indoctrinating other Muslims on the need for violence and to advancing Al-
Qa’ida’s recruitment efforts. Through At-Tibyan Publications, a group working
directly with Al-Qa’ida, Mehanna produced English-language propaganda urging
violence against the West. Along the way, he repeatedly lied to government
officials, falsely claiming, inter alia, that he had traveled to Yemen to attend
school and that a co-conspirator who had joined a terrorist group in Somalia was
residing in Egypt instead.
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2. Mehanna Radicalizes: “Make Death What You Seek.”
Born in 1982 to Egyptian parents residing in the United States, Mehanna
grew up in the Boston suburbs. GX778A, GX477. Around 2000, Mehanna
embraced Salafism, a fundamentalist branch of Islam devoted to “doctrinal
purity.” 31/42; see GX778A(2); 14/59-60, 15/130, 22/128-29. Although many
Salafis avoid politics, 18/21, 31/42-43, Mehanna’s Salafism was explicitly
political and violent. Mehanna believed that Islam required him to engage in
physical fighting (jihad) on behalf of the Muslim nation (Ummah) and he hoped to
be martyred for this cause. 18/49-50; see GX441 (Mehanna poem: “Make your
path be none other than Islaam’s highest peak, Whose mountain is climbed by
making death what you seek.”), GX705 (Muslims should stand up to tyrants so
they can “attain[ ] martyrdom”). As Mehanna later wrote, “from day one my
practice of Islam was always associated with the absent obligation [i.e., jihad].”
GX778(2).2
2The Arabic word “jihad” (often translated as “struggle”) can refer to non- violent activities. 29/43. Mehanna and his co-conspirators, however, used it to refer to physical fighting. See, e.g., 8/21, 17/116, 22/121; see also 19/133 (Salafi- Jihadis see armed conflict as the primary means for establishing their goals), 29/43 (“religiously legitimate” warfare); GX25(5, 11) (book Mehanna translated defines “jihad” as “physically fighting the disbelievers with the sword” and “terrorism”). Accordingly, we use “jihad” here the way Mehanna did.
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Mehanna’s “creed” required loyalty to other Muslims and enmity towards
“non-believers.” GX718(261), GX778A(2), GX623(146). Mehanna’s own
enmity was primarily directed at the United States, a homeland he despised and
yearned to leave.3 Mehanna believed the United States had inflicted untold
suffering on Muslims worldwide, GX352; 14/65, and was properly subject to
retaliatory violence, including suicide attacks.4
Even before the 9/11 attacks, Mehanna’s inspiration was Osama Bin Laden,
the founder of the Al-Qa’ida terrorist network. Mehanna described Bin Laden as
“the reason I started practicing [my religion]” and as “my real father,” and noted
that “every time I see him speak or read anything about him, I love him more than
I did before.” GX623; see GX620; see also 19/135. Mehanna also embraced
jihadist propaganda, which fundamentally shaped his outlook. GX778A(2)
3See, e.g., GX778A(2) (“I am counting the days until I can step on a plane out of this country for good.”), GX543(13) (Americans are “the dirtiest people”), GX718(255) (United States laws are “the laws of Satan”); see also GX597 (Mehanna tells a co-conspirator who might renounce his U.S. citizenship that it could prove useful for a terrorist operation).
4Mehanna approved of suicide bombings as long as the benefits exceeded the harm, 17/125, 19/71; GX351, and even sought (unsuccessfully) historical evidence that American colonists had used suicide bombings against the British. 21/55; GX661(165-66), see also GX349, GX443(1) (in late 2003, Mehanna posts his admiration for the Bali, Indonesia suicide bombers on an extremist web forum).
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(viewing jihadist video in 1999 “pointed me in the right direction”). He amassed
an extensive library of these materials, which he disseminated to others. 4/22-29,
14/31, 17/116, 19/135, 23/83.
Mehanna was particularly fond of Al-Qa’ida’s propaganda videos, which he
later helped to create. These videos appeal directly to western Muslims for
personnel and other support. 26/140-41, 27/106-07. Mehanna’s “favorite” video
was “The State of the Ummah,” an early release that preceded the 9/11 attacks.
27/9; GX296(TAO2954) (“that’s what started it all”). This feature-length
production reviews “the sorry state of the Muslim nation,” reciting in anguished
tones a litany of grievances against the world. GX449. Bin Laden and his
deputies then identify the “cause” of this suffering, i.e., “the dislike of fighting and
the love of the worldly life” among Muslims. GX449(20:55). Next, they call on
viewers to come train in Taliban-controlled Afghanistan (“the land of jihad”) and
to achieve martyrdom through terrorist acts against the United States. GX450
(9:38, 16:21). Such acts, “The State of the Ummah” promises, “have cleansed our
nation of its disgrace.” GX450(36:01); see id. at 36:23 (“We are terrorists and
terror is an obligation in the Book of Allah.”).5
5Watching videos of U.S. casualties in Afghanistan and Iraq made Mehanna “jubilant.” 17/126; see also 8/72, 8/80; GX267. One such video showed the mutilated corpses of American soldiers, which Mehanna gleefully described as
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3. Mehanna’s “Good Crew”
Mehanna’s radicalism found no support either at home or among the leaders
at his mosque. 8/18-21; GX257, GX659, GX459A(402). But Mehanna
nonetheless located a “good crew” of like-minded young men. GX623; 8/21.
From 2000 to early 2004, his inner circle included Ahmad Abousamra, a
charismatic and opinionated Syrian; Kareem Abuzahra, a computer science student
from a wealthy Palestinian family; and Hassan Masood, the son of a local
Pakistani Imam. 8/122, 14/12-18, 14/52, 20/126-27, 22/115-120, 22/141.
Together, this group watched jihadist videos, which inspired them to action.
20/55, 14/32. The men also discussed ways they might participate in jihad, a topic
they avoided with others. 22/116-32.
4. The 9/11 Attacks: “This Mission So Blessed.”
The events of September 11, 2001, solidified Mehanna’s support for Bin
Laden. 14/131. Watching news reports in a Dunkin Donuts, Mehanna and
Abousamra fought hard to suppress their smiles. 23/72-73. Later, Mehanna
penned a eulogy to the “martyrs” who undertook “this mission so blessed”: “On
that morning you became our hero, The day you turned twin towers into ground
“Texas BBQ.” GX734. Mehanna also watched and disseminated videos showing the beheadings of contractor Nicholas Berg, 8/91, and journalist Daniel Pearl. GX350; 14/33, 27/78-79.
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zero!” GX347; 8/35; see also GX352 (Mehanna celebrates 9/11 anniversary with
a tribute to the “victims” of U.S. “terrorism”), GX448(5).6 True to his “State of
the Ummah” worldview, Mehanna saw the 9/11 attacks as just retaliation for
“what had happened in Arab lands.” 9/31, 14/16-17, 17/122, 20/129, 22/127.
5. Mehanna Goes To Yemen In Search Of Al-Qa’ida And Jihad: “We’re Actually Doing It.”
Mehanna and his group constantly sought ways to discharge their personal
duty to engage in jihad. 22/128, 17/127. When the United States invaded
Afghanistan in the fall of 2001, the men debated how to respond to this
“unjustified attack.” 14/17-20, 17/127-29, 22/126-27. Mehanna concluded that
trying to enter Afghanistan through Pakistan would lead to certain arrest. 17/129.
Abousamra, however, twice journeyed to Pakistan hoping to secure paramilitary
training and participate in jihad. 11/48, 14/20-27, 15/100-101, 20/34, 22/133.7
6Mehanna revered the 9/11 hijackers and studied their lives. GX628(198- 203), GX611(28); see also 19/136 (Mehanna distributes video regarding 9/11 “martyrs”); GX504. As for the victims, Mehanna dismissed them as “disbelievers,” not worthy of the mercy of Allah. GX698(133); see also GX628(199) (discussing a movie about the airplane that crashed in Pennsylvania on 9/11, Mehanna asks: “One question: how did it end? hahhhahahahahahahahahaahahaahaha”).
7Before leaving, Abousamra consulted with Masood, whose uncle had founded the Pakistani terrorist organization Lashkar e Taiba. 14/20, 14/77, 20/34. Masood planned to accompany Abousamra to Pakistan but backed out. 14/21; see also 23/95 (Abuzahra provided money for trip to “participat[e] in jihad”).
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Although Abousamra met up with a terrorist group, he was turned away. 14/23,
14/26. After a Pakistanti contact (Abdulmajid) suggested that he try instead to
accomplish something in the United States, Abousamra came home in December
2002. 11/48, 14/26-27. Abousamra remained in contact with Abdulmajid and
kept Mehanna and Abuzahra informed about these communications. 15/22, 23/99.
When the United States invaded Iraq in March 2003, Mehanna and his crew
decided they had to act. In keeping with Abdulmajid’s advice, they “discuss[ed]
doing something domestically,” 22/136-38, 14/27-29, and came up with the idea
of firing machine guns in a shopping mall. 22/140-42, 20/113. Abuzahra visited
Daniel Maldonado, a Salafist Muslim whom he thought might have access to guns.
22/142-43, 17/141. When Maldonado indicated that he could not supply
automatic weapons, interest in the shopping mall plan waned. 22/145-47; see also
17/141-42. Mehanna, Abuzahra and Abousamra also talked about attacking
Hanscom Air Force Base and assassinating Attorney General John Ashcroft.
22/139-40, 22/147-48.
Ultimately, Mehanna and the others concluded that they had to “go and
defend [their] faith” in Iraq. 22/134; see also 14/37-39, 14/133-36, 15/102,
17/127, 23/6. Joining the insurgency in Iraq, however, required both military
training and a safe route to the war, neither of which was easy to find. 27/65 (Al-
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Qa’ida training camps were difficult to locate after 9/11), 17/129, 22/135-36,
34/81. Yemen seemed like one possible route, given its generally lawless
atmosphere, the presence of Arab veterans of the Afghan war, and its proximity to
Iraq. 15/102, 23/5-6; see GX9; see generally 27/92-93.8
Through internet conversations, Abousamra discovered that Jason Pippin, a
Salafi-Jihadi in California, might have useful Yemeni contacts. 14/39, 15/64,
15/67, 15/73, 23/4-5. In late 2003, Abousamra flew to California to meet Pippin.
23/7-11. Abousamra told Pippin that he intended to participate in jihad in Iraq and
wanted to obtain paramilitary training in Yemen first. 15/66, 15/97, 15/102.
Pippin, who had lived in Yemen and trained at a terrorist camp in Pakistan,
gave Abousamra contact information for two Salafi-Jihadis who might help: a
teacher and an Egyptian perfume salesman who had connections with Al-Qa’ida.
15/97-99, 16/70-75, 23/9-10. Pippin also told Abousamra how best to enter
Yemen and advised him to say that he intended to visit the Dar al-Mustafa school.
15/105-06. Pippin proposed this “cover story” because this school was apolitical
and “diametrically opposed to the ideology of the Salafi-Jihadis.” 15/106, 16/92,
30/80-82.
8Mehanna kept a November 2003 document entitled “How to Reach the Battlegrounds,” authored by the founder of Al-Qa’ida in the Arabian Peninsula, in his room. GX17A; 26/134.
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Abousamra reported back to Mehanna and Abuzahra, and the three men
prepared in earnest to leave for Yemen and jihad. 23/12, 25/74. They obtained
visas and Abuzahra purchased three round-trip tickets, concluding that one-way
travel would be too suspicious. 23/23-29. To prepare physically, they went
hiking. 23/23, 14/36. Mehanna joined an online discussion about whether a son
should leave for jihad against his parents’ wishes. GX446. Mehanna also
solicited money for the trip from Tariq al-Daour, a Salafi-Jihadi based in London.
GX269(TA03005); see also 20/96, 23/39. Mehanna assured al-Daour that “[i]ts
one of those things that Allah will give us rizq [i.e., reward us] for, trust me.”
Ibid.; see also 23/50.
The men agreed that, if questioned by authorities, they would falsely claim
they intended to visit “some kind of benign school” in Yemen. 23/13-16, 23/29.
On January 30, 2004, Mehanna printed information from the website of Dar al-
Mustafa, the moderate school Pippin had identified, to bring along on the trip.
GX8; 4/60-61, 23/13, 23/15.
None of the men informed his family that he was departing for Yemen.
14/40, 14/107.9 The airline tickets were sent to Mehanna’s house because he
9Abuzahra, however, transferred money out of his name in an attempt to protect his assets if the government uncovered the purpose of his trip. 23/23-24, 23/31. He also left behind a video for his two children to remember him by.
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could retrieve them from the mailbox without his family discovering them. 23/32.
The men also scheduled their trip for the Muslim holiday of Eid, when their
families would be distracted and Mehanna’s parents would be out of the country.
14/107-08, 23/14.
On February 1, 2004, Mehanna, Abousamra and Abuzahra gathered at
Mehanna’s house to leave. 14/40, 23/32-33. Abuzahra had withdrawn several
thousand dollars and the men divided it up to avoid having to declare it. 23/27.
Mehanna gave his younger brother Tamer a note for his family and a bag of things
he did not want discovered, including information about how to make a bomb.
23/35; GX455(CA00533); see also 14/35. Masood drove during the “very
somber” airport trip. 14/40-41, 23/36.
At Logan Airport, the men were interviewed and provided the pre-arranged
lie about a Yemeni school. 11/57, 23/38. They then flew from Boston to Abu
Dhabi. 11/48-49, 23/40-41. On the way, Mehanna expressed excitement that they
were finally doing what they had discussed for so long. 23/40 (“We’re actually
doing it.”).
In Abu Dhabi, Mehanna sent his brother an email asking him to “make
du’aa [supplication] for us,” and claiming that he did not care about the “stupid
14/43, 23/31, 23/34.
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things” that might be said by “whoever found out,” because “[o]ur only purpose in
life is to please Allah.” GX355; 23/48-49. Also in Abu Dhabi, Abuzahra received
emails from his family that prompted him to return home. 14/43, 23/44-46. He
gave most of the money to Mehanna and Abousamra to finance their jihad but
took the information on the Dar al-Mustafa school, reasoning that he “might need
that [paperwork] on [his] way back,” while Mehanna and Abousamra were
unlikely to return at all. 23/50-51. Abuzahra did show this paperwork to airport
officials on his return, claiming that he had cut short a trip to the school. 11/65,
23/51-51; GX767.
Mehanna and Abousamra flew on to Yemen where they spent a week trying
to locate a terrorist training camp. GX455(CA00518), GX459(CA00377,
CA00379-83); 11/48-49, 14/43, 14/136, 17/131-32, 19/75, 20/32, 23/69. In the
city of Ma’rib, they found the Egyptian perfume seller that Pippin had identified.
But he told them that “all that stuff [i.e., the training camps] is gone ever since the
planes hit the twin towers.” GX459(CA00383-385); see also 14/43-44, 19/76.
Abousamra and Mehanna left Yemen together and Abousamra eventually
made his way to Iraq, intending to fight against U.S. forces. 8/96, 11/48, 14/45,
20/33, 23/69-70. Abousamra later related that he stayed in Fallujah, Iraq, during
heavy fighting but never managed to join in. 8/95-97, 14/45-46, 23/71. He
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returned to the United States in August 2004. 11/49, 11/92-102.
Mehanna returned home.10 When questioned at Logan Airport, Mehanna
falsely claimed that he had visited Dar al-Mustafa and another school, and that
Abousamra was still in Yemen. 11/80-82. Mehanna resumed the pharmacy
studies he had abandoned. 11/49; GX799, GX459(385) (Mehanna complains that
he “left [his] life behind” to pursue Pippin’s leads). Years later, Mehanna’s
parents were still distraught about the trip. GX656, GX617; 17/132, 8/118-19
(father concerned with Mehanna’s “extreme views” and his Yemen trip).
Although Mehanna openly discussed the trip within his inner circle, 20/29-
30, 40, he worried that news of it had reached unreliable ears. 8/95, 20/87-93;
GX655(81) (“people that [we] don’t even know know about that which is not
good”), GX584(62), GX664(194-95) (expressing concern that someone unreliable
“knows about [Mehanna’s] and [Abousamra’s] field trip” “to the YMCA”). And
he lamented that he had been unsuccessful. 19/76; see GX459(CA00383). But
Mehanna insisted that the trip constituted “the best two weeks of [his] life,”
because “just for once, ... I’m not, like, sitting on my butt being a manfiq [i.e.,
hypocrite], telling people to do something I’m not doing.” GX459(408-09).
10Mehanna later indicated that he came back because his parents called, because he viewed going to Iraq as a “waste of time,” and because he was disillusioned by his lack of success in Yemen. 20/31-32.
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If nothing else, the Yemen trip allowed Mehanna to prove his jihadist bona
fides. When a potential bride made clear that she would reject any suitor with a
lackluster commitment to jihad and martyrdom, Mehanna pointed to the Yemen
trip. GX777A(9), GX778A(2). After assuring the woman of his devotion to jihad,
Mehanna confided that “I went for an interview and was rejected by that company
and sent back because I had no references to vouch for me, as they don’t just hire
anyone of[f] the street.” GX778A(2).11
6. Doing What We Can “While We’re Stuck Here”
Mehanna’s commitment to jihad never dimmed. To the contrary, he
continued to ponder how he could train with Al-Qa’ida and fight against his
countrymen abroad. See, e.g., GX617 and 10/36-37 (discussing another attempt to
“go donate blood,” i.e., fight); GX583(48, 53) (encouraging Abousamra to reach
out to his Pakistani contact and then also suggesting that they try to contact the
Egyptian perfume seller again), GX592, GX557 (Mehanna seeks introduction to
veteran of jihad: “I’d like to speak to him ... he might help.”). In the meantime,
“while we’re stuck here,” GX459(CA00408), Mehanna found other ways to
support Al-Qa’ida’s cause.
11Later, after the two were engaged, Mehanna urged his fiancée “DO NOT tell your mother that I was there as it had to do with that job interview.” GX264.
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A. Mehanna Trolls For New Jihadists Among Local Youth.
Mehanna bemoaned the small size of his “good crew,” especially after
Abuzahra distanced himself after returning from their Yemen trip. See, e.g,
GX699(7), GX499; 23/57-58. Mehanna thus took it upon himself to recruit new
members. GX699(7) (“At this point, we are doing one-on-one efforts, like
befriend a person, slip stuff in here and there.”); see also GX778A(2) (Mehanna
notes his “main focus ... on the local youth”). Mehanna used his Yemen trip and
his propaganda work for Al-Qa’ida, see infra at 20-26, to build his credibility with
potential recruits. See, e.g., GX690(49-50), GX664(194-95), GX612; 8/94-95.
After returning from Yemen, Mehanna became close to two Salafi-Jihadi
converts, Daniel Maldonado and Daniel Spaulding. 8/110, 17/113, 19/58, 19/133,
20/109, 23/64. And he devoted countless hours to courting others. See, e.g., 8/17-
123, 9/75; GX623, GX685, GX710, GX711, GX718, GX719; see also GX649(12)
(Mehanna and Spaulding discuss who they have been “working on”). Along the
way, Mehanna theorized about how best to “doctrine-ize” new recruits.
GX525(131). The key, he concluded, was to move “slowly,” “lay[ing] down the
basics ... in a general sense” before “switch[ing] it over” to a more specific
discussion of jihad. GX663(189); see ibid. (“[O]bviously, I’m not going to go in
there with my ‘I (l) Shaykh Usama shirt on’”); 20/56 (Mehanna explains to
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Spaulding the need to “build up a certain foundation” before broaching the
“necessity and obligation” of jihad); GX685(97).12
Mehanna fed his recruits a steady stream of increasingly violent propaganda
intended to inspire them towards jihad. See, e.g., 8/34, 20/56-60; GX649(12) (“I
lent [one potential recruit] the state of the ummah cd and after he saw it he told me
‘Things are much clearer now.’”); GX624(167) (transmitting video of U.S. marine
being blown up by a bomb). In December 2005, Mehanna accompanied other
young men to Ground Zero. 8/54-56. In a photograph taken at the site, Mehanna
and a recruit, both grinning, imitate the mujahideen fighters in jihadi videos by
holding up a single finger to symbolize the one God of Islam. GX354(B); 8/56.
B. Mehanna Joins The “Media Wing” Of Al-Qa’ida In Iraq.
Mehanna also threw himself into producing English-language jihadist
propaganda, hoping to recruit others to support Al-Qa’ida. This pursuit coincided
with a change in Al-Qa’ida’s own media strategy. Frustrated with the Al Jazeera
network, which broadcast only short excerpts of its propaganda, 26/140-141,
34/90, Al-Qa’ida began posting its materials directly on jihadist websites. Ibid.;
27/5, 27/8, 34/81.
12Ominously for his parents, Mehanna’s potential recruits included Tamer, his only sibling. GX547(63) (“I am trying to get him out of his mindlessness [towards religion]”), GX726-29.
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An internet forum called At-Tibyan Publications proved critical to Al-
Qa’ida’s media efforts. 27/31. Organized around 2004, At-Tibyan quickly
became the premier English language Salafi-Jihadi web forum. 6/45, 18/36,
27/31, 28/57. Access to At-Tibyan was password-protected and persons suspected
of disloyalty were ejected from the site. 6/53, 6/83-84, 20/14, 28/115, 27/31,
28/57; GX530. For its members, At-Tibyan provided a discussion forum for
English-speaking jihadists and a library of existing English-language jihadist
material. It also produced new translations of such materials (including Al-Qa’ida
propaganda). 6/46-59, 27/31-33.
In early 2005, Al-Qa’ida in Iraq (AQI) asked At-Tibyan to translate its
online magazine. GX378 (“AQ IN IRAQ ASKED ME TO CONTACT TP AND
ASK YOU GUYS TO WORK ON TRANSLATING [the magazine]”); 13/20,
27/31-32. AQI’s request was relayed through Younis Tsouli, a radical jihadist in
London who distributed material for AQI and served as a “central hub” for
contacting the terrorist organization. 27/32-33; see also 15/61 (materials
translated by At-Tibyan came from other websites that served as clearinghouses
for people affiliated with Al-Qa’ida); 34/80 (Al-Qa’ida piggybacked on Tsouli’s
sites). Tsouli purchased the web space (domain name irhaby007.ca) that housed
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At-Tibyan and other forums. 13/6-11, 13/15.13
Around the same time that At-Tibyan began translating Al-Qa’ida’s
propaganda at Al-Qa’ida’s behest, Mehanna became influential at At-Tibyan.
Upon joining At-Tibyan, Mehanna began posting his own translations. His work
caught the eye of At-Tibyan’s editors and, on April 4, 2005, Ehsanul Sadequee
asked Mehanna to join the translation team. GX414, 13/19.14
Thereafter, Mehanna proved invaluable to At-Tibyan. In addition to his
translations, Mehanna also performed production tasks, suggesting how to
compose or digitally edit media, prioritizing projects and editing works translated
by others. See, e.g., 6/56-57; GX249 (providing pictures for translation of AQI
recording), GX502 (prioritizing), GX512 (editing translation of AQI video). In
addition, Mehanna served as a moderator, controlling the messages that were
posted on the site. 6/55, 58; see also 8/86-88 and GX635 (Mehanna helps
13In October 2005, Scotland Yard executed search warrants at the residences of Tariq al Daour, see supra at 14, Waseem Mughal and Tsouli. 12/118. At the time, Tsouli was engaged in a chat session with Ehsanul Sadequee, an editor at At- Tibyan. The arrest of these men was a cause for “depress[ion]” for Mehanna and associates. See, e.g., GX689. Later, Mehanna worried that the same fate would befall him and an At-Tibyan colleague. GX507 (“I just hope it isn’t Ismyy [Mughal] and DJ [al Daour] for us.”).
14When Sadequee disappeared in March 2006, Mehanna joyfully speculated that he had “made it,” i.e., gone to jihad. GX513(87); see also GX503 (Mehanna states “maybe one day there will be an At-Tibyan brigade”).
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potential recruits obtain access to At-Tibyan site).
Mehanna produced an impressive volume of propaganda, including:
* A complete translation with digital graphics of a 65-page book
entitled “39 Ways to Serve and Participate in Jihad,” written by the
leader of Al-Qa’ida’s media wing in Saudi Arabia. GX25; see
GX720 (“I translated that”); 5/67, 5/80-81, 27/44-49, 28/94-95. This
book equates “jihad” with “terrorism,” GX25(5), and provides an
instructional guide for those wishing to assist the cause. See, e.g.,
GX25(45) (urging people with technical knowledge to “hack”
American, Jewish, modern and secularist websites as a form of
“electronic jihad”).
* The translation and editing (along with At-Tibyan collaborators) of
the hour-long AQI video “The Expedition of Umar Hadid.” GX26;
see 5/83; see also GX612(33). This video mixes speeches of Al-
Qa’ida members, including Bin Laden GX26(32:43), with depictions
of, and praise for, suicide bombers who have killed Americans in Iraq
GX26(52:28). It repeatedly exhorts listeners to “come join the Jihad
in the land of Iraq,” and to attack Americans. GX26(53.58); 8/83.
* A translation of the AQI recording “Such are the Messengers Tested,”
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by the leader of AQI, Abu Musab al-Zarqawi. GX248; 27/47.
* A partial translation of a manuscript entitled “The Ruling Regarding
Killing One’s Self to Protect Information,” which was based in part
upon an essay by Al-Qa’ida’s al-Zawahiri. GX253.
* An English language version of the AQI video “Wa Yakoon,” which
Mehanna edited after its translation and which states that it is from
“Your brothers in the Media Branch, The Organisation of Al Qa’edah
in the Land of Iraq.” GX41, GX782 (translation), see GX512.
Mehanna knew that At-Tibyan was translating materials at Al-Qa’ida’s
request. On October 10, 2005, Aboo Mahmoud Al-Muraabit, an At-Tibyan
administrator, sent Mehanna a private message enclosing a video of Al-Qa’ida
leader Dr. Ayman al-Zawahiri. GX427; 13/22-23.15 Al-Muraabit informed
Mehanna that “the ikhwaan [i.e., brothers] from the cloud people are asking us if
we can translate this msg from the al doctoor [al-Zawahiri] regarding curryland
[Pakistan].” Al-Qa’ida’s media wing was named “As-Sahaab,” which translates as
15Mehanna received translation assignments principally through Sadequee and Al-Muraabit. See, e.g., GX414 (private message from Sadequee to Mehanna), GX248, GX249, GX252, GX253, GX255 (emails to Sadequee with translations or photographs to be included in videos), GX505, GX511, GX512 (chats re: additional projects).
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“the cloud,” and the enclosed video clearly bore its logo. 13/22-23, 26/141.
Knowing that At-Tibyan’s translators worked for Al-Qa’ida, Mehanna
continued to help create English-language versions of Al-Qa’ida propaganda.
Indeed, Mehanna collaborated on an introduction to the very al-Zawahiri video
that the “cloud people” had asked At-Tibyan to translate. GX516. Mehanna was
pleased to contribute to AQI’s propaganda effort. When an At-Tibyan colleague
informed Mehanna that their group had been described online as AQI’s “media
wing,” GX499(12), Mehanna demurred but only on modesty grounds: “[M]an, I
don’t think we deserve that title, maybe if we are lucky we get to clean their
toilets.” GX499(13).
Mehanna’s proudest contribution to Al-Qa’ida’s propaganda efforts was
producing an English language video version of the recording “The Expedition of
Umar Hadid.” GX26. When Al-Muraabit provided Mehanna the “Umar Hadid”
piece in Arabic, he made clear that it had been obtained through back channels:
“DON’T SHARE UNTIL RELEASED ON TP OFFICIALLY OR I’LL GET IN
TROUBLE LOL.” GX415; 27/37. Indeed, AQI did not officially release the
“Umar Hadid” recording until two days after Mehanna received it. 27/38.
Mehanna and his At-Tibyan colleagues held up their end of At-Tibyan’s
partnership with Al-Qa’ida by creating an English language version of the Umar
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Hadid release. GX612; 27/38. The final product was titled “At Tibyan
Publications presents: The Expedition of Shaykh Umar Hadid May Allah have
Mercy on Him, Released by the Al Quaidah Network in the Land of the Two
Rivers [i.e., Iraq].” GX26.
To Mehanna, his work with At-Tibyan served only one purpose: to recruit
others to jihad. Informed that his “Umar Hadid” video was popular, Mehanna
replied, “I just hope it leads to action[.]” GX511(72); see also GX523 (Mehanna
hopes the “39 Ways” book “makes an impact”). In a more pessimistic mood,
Mehanna complained that he had “wasted a week of [his] life” doing this video
because it was being watched by “bedroom mujahiden” who were not willing to be
martyred for the cause. GX267(TME04624).16
7. Maldonado Calls Mehanna To Jihad In Somalia: “There’s No Other Life Except For This.”
As Daniel Maldonado adopted the Salafi-Jihadist mind-set, he and Mehanna
became best friends. 8/110, 17/113, 19/58, 19/134. Around November 2005,
Maldonado moved to Egypt with his pregnant wife and two young children. 18/9.
Mehanna visited him there in August 2006. 11/49, 18/23, 28. Three months later,
16Mehanna and Abousamra joked about ways to increase Al-Qa’ida membership and about how the United States was losing to the Al-Qa’ida propaganda machine. GX586(67).
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Maldonado took his family to Somalia during a civil war, hoping to participate in
jihad and live in an Islamic state. 18/37-38.
In Somalia, Maldonado went south for military training with Al Shabaab, a
terrorist organization that included Al-Qa’ida members. 18/40-44. On December
12, 2006, Maldonado called Mehanna three times to persuade him to come to
Somalia. GX299-GX304; 18/46-56; see 18/53 (Maldonado viewed Mehanna as
“the most apt to possibly take my advice and come”). In recorded conversations,
Maldonado described Somalia as a paradise, see, e.g., GX302(3) (“[t]his is the life,
man, there’s no other life except for this”), and explained in coded language that
he was training for jihad. GX302(4) (“[R]ight now I’m in a cooking school I just
make peanut butter and jelly.”); see infra at 28 (discussing code terms).
Maldonado and Mehanna discussed such details as who might pay for Mehanna’s
trip to Somalia, visas and flights, and how to enter Somalia through the airport.
Ibid.17
Four days later, the FBI questioned Mehanna about Maldonado. Mehanna
repeatedly lied, claiming, inter alia, that he had last heard from Maldonado two
17Within a few days, Maldonado moved to the front lines. After surviving an attack by Ethiopian troops, he was ultimately arrested in Kenya. 18/60-61. Meanwhile, his wife died of malaria attempting to flee. 18/58-59. In 2007, Maldonado pleaded guilty to terrorism-related charges, agreed to cooperate with the government, and was sentenced to 10 years’ imprisonment. 17/108.
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weeks earlier; that Maldonado was living in Egypt; and that Maldonado was
employed maintaining a website. 16/118. Later, after a newspaper report about
his phone conversations with Maldonado appeared, Mehanna expressed concern to
Spaulding about having lied to the FBI. 20/112; see also GX460 (Mehanna
admits that “lying to them [the FBI] in and of itself is a crime”).
8. Mehanna Attempts To Avoid Detection, Lies To The FBI And Works To Get Everyone “On The Same Page.”
Throughout 2000-2007, Mehanna and his fellow jihadists attempted to hide
their activities from others, especially law enforcement. 8/117-18; GX578. The
group swapped ideas about computer security and employed various strategies to
hide their online activities. See, e.g., GX508, GX537, GX572(238) (“I’m trying to
keep my comp free from any stuff”), GX587, GX655(77), GX722; 5/65-66. In
addition, they used coded language, such as “peanut butter and jelly,” to refer to
“jihad,” GX669(66), 8/107-08, 20/83; “YMCA” to refer to Yemen, GX664(194-
95); and “Bob” or “Brian” to refer to the FBI. 14/46; GX655(77), GX271,
GX318(3).
After the Yemen trip, Mehanna constantly warned others not to disclose
certain information online. See, e.g., GX669(60) (“don’t reveal everything online
that can be used against u”), GX680 (“Take it easy on line”), GX690(50) (“Use
hikmah [i.e., wisdom] online.”), GX426 (Mehanna urges At-Tibyan member to
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“exercise relative safety” when using his email address), GX693(84) (Mehanna
tells a correspondent that he’s “being watched” ); see also 17/134-35 (after
Yemen, Mehanna was “more security minded”). And he worried about whether
certain associates were government informants or otherwise untrustworthy. 20/53
(Mehanna warns Spaulding to be careful of what he says around a recruit), 20/83-
84; GX654, GX558, GX530 (Mehanna suspends At-Tibyan account of suspected
“rat”), GX282 (Mehanna speculates about who might be cooperating with the FBI
regarding Maldonado).18
Once they became aware of an FBI investigation, Mehanna and his crew
attempted to mislead the government and cover their tracks. In a December 12,
2006 interview, Abousamra falsely claimed, inter alia, that he had gone to Yemen
to attend the Dar al-Mustafa school. 16/101-04. In his own FBI interview four
days later, Mehanna falsely claimed that he, too, had gone to Yemen to attend
school; that no one helped them plan the trip; and that, while in Yemen, he had
visited Dar al-Mustafa. 16/113-15. Mehanna also lied about Abousamra’s Iraq
18News that “hypocrites” had cooperated with the government outraged Mehanna. See, e.g., GX667(216) (hoping Muslim informant who helped foil bomb plot would be raped by someone with sexually transmitted diseases). After Maldonado was arrested, Mehanna and Omar Hammami, another American who was fighting in Somalia, attempted to identify who might have informed against Maldonado, so that, as Hammami put it, “[Mehanna] can hunt him down.” GX291(TAO3440).
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trip, claiming that Abousamra was looking for work as a translator. 16/116.
Mehanna and his compatriots also conspired “to make sure that [they]
[were] all ... on the same ... page.” GX324(3). In several recorded conversations
in late 2006 to early 2007, they rehearsed their stories and attempted to determine
who knew about the Yemen trip. 23/110-29, 24/4-21; GX454-GX461.19
On December 26, 2006, Abousamra left for Syria on a round trip ticket.
17/33, 17/46; see also 9/5, 11/49, 14/48. At Logan airport, he claimed to be going
on a one-month vacation. 17/46. He has never returned. Ibid.; GX459(CA00369)
(Mehanna jokes on January 12, 2007, that Abousamra has gone to Syria for the
Eid holiday “and the next Eid and the Eid after that”).
After receiving his pharmacy degree in 2008, 3/78, Mehanna also made
plans to leave. On November 8, 2008, he was arrested at Logan Airport as he
attempted to depart for Saudi Arabia. 5/22.
9. The Defense Case
Mehanna did not testify at trial and presented no fact witnesses. Instead, he
contested his guilt through opening and closing statements, cross-examination,
and six expert witnesses.
19In October 2006, Abuzahra decided to cooperate with the government. Thereafter, he wore a recording device during conversations with Mehanna, Abousamra and others. 23/105-10.
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With respect to the Yemen trip, Mehanna acknowledged that Abousamra
and Abuzahra intended to obtain terrorist training and fight in Iraq. 3/70-72. But,
Mehanna argued, he merely went to Yemen during a “semester break” to visit
schools he hoped to someday attend. 3/71; see 35/116, 35/127.
As for his propaganda activities, Mehanna argued that he “advocated ...
independently of Al-Qa’ida” against the war in Iraq and thought he was exercising
“the freedom granted him by the First Amendment.” 3/73, 3/77; see 35/106-07,
35/137. Mehanna contended that he translated jihadist propaganda to help “other
people to understand the other point of view.” 3/74-75. And despite claiming
credit at the time for translating “Umar Hadid,” see, e.g., GX612(33), GX267(15-
16), Mehanna claimed at trial that someone else must have done this translation
because it used some British terms or spellings. 33/66-78, 35/96, 35/132. In any
event, Mehanna claimed, his propaganda activities did not render material support
to Al-Qa’ida because people did not join the terrorist organization through the
internet. 34/80, 83, 89.
Mehanna acknowledged that he lied to the FBI about Maldonado’s
whereabouts but argued that his lies were not material because the government
already knew that Maldonado was in Somalia. 35/130-31.
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More generally, Mehanna sought to distance himself from his radical views,
asserting, for example, that he was “shocked and confused” by 9/11, 3/67; that he
“understood” the U.S. decision to “seek justice” in Afghanistan, ibid.; and that he
admired Bin Laden principally for resisting the Soviet Union’s occupation of
Afghanistan. 9/43-47, 14/70-71.
In a similar vein, Mehanna claimed that he was less dangerous than others
(especially Abousamra), 24/56, 25/34, 35/119-20, 35/125; that he was less
dangerous than he had once been, 21/37, 35/102, 35/112-13, and that, perhaps, he
was not dangerous at all. The latter argument focused on Mehanna’s claim that he
felt bound by a covenant to obey U.S. law (the “Aman” claim). 20/116-20, 29/41-
43, 35/98, 35/114-15. He also claimed that his views diverged from Al-Qa’ida’s,
35/99-101, and that he was kicked off At-Tibyan due to his “moderate” opinions.
3/79, 35/98-99, 35/134.
Finally, Mehanna complained that he had been prosecuted by a vindictive
government simply for declining to cooperate with the FBI. 35/125 (Feds are
“‘evil malicious people’”); 35/120-31 (suggesting that Mehanna had been “set up”
by the FBI); see also Br. 18-19 (repeating this claim).
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SUMMARY OF ARGUMENT
The evidence at trial established overwhelmingly that Mehanna conspired
with Abuzahra, Abousamra and others to travel to Yemen to receive training from
Al-Qa’ida and to fight against U.S. soldiers in Iraq (Counts I-IV). Mehanna’s own
recorded statements, as well as testimony from co-conspirators Abuzahra,
Maldonado, Masood and Spaulding, directly confirmed the trip’s purpose. That
testimony was corroborated by circumstantial evidence, including the
conspirators’ strenuous efforts to control information about the trip. Mehanna’s
alternative theory – that the others went to Yemen for jihad while he wanted only
to investigate an Islamic school – was contradicted both by the evidence
(including Pippin’s testimony that he was the one who invented using Yemeni
schools as a cover story) and by common sense. Mehanna’s specific claims of
missing evidentiary links lack merit: Mehanna’s own statements were more than
sufficient to establish that Mehanna specifically intended to murder U.S. soldiers
and that his plan contemplated supporting Al-Qa’ida, and his travel to Yemen and
ensuing hunt for training camps there established a “substantial step” towards
completing the crime.
Mehanna’s claims that Sections 956 and 2332 could not serve as the
contemplated offenses for his material support convictions are wrong. Because
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Mehanna’s attempted and intended provision of support took place both within the
United States and in Yemen, and because the actual and intended recipients of that
support were both in the United States and abroad, the geographical requirements
in Sections 956 and 2332 were satisfied. Mehanna’s reliance on the Attorney
General certification requirement in 18 U.S.C. 2332(d) is misplaced, because that
requirement applies only to prosecutions under Section 2332 itself.
There was no prejudicial variance between the evidence at trial and the
indictment. The existence of co-conspirators in the United Kingdom and the fact
that Mehanna’s group considered carrying out domestic terrorist attacks were fully
consistent with the purpose and parameters of the conspiracy set forth in the
indictment.
The district court properly admitted statements by Mehanna’s co-
conspirators. All of the challenged statements were during and in furtherance of a
conspiracy and properly admissible under Fed. R. Evid. 801(d)(2)(E). Contrary to
Mehanna’s claim, the relevant conspiracies were not focused exclusively on the
Yemen trip and did not automatically end upon Mehanna’s return; the record
establishes that Mehanna’s conspiracies continued for years after the Yemen trip
and encompassed additional objectives, including the concealment of the
conspirators’ activities. Moreover, admission of the challenged statements was
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harmless in light of the overwhelming evidence, which included both Mehanna’s
own incriminating statements and unchallenged statements by the same co-
conspirators.
The First Amendment provides no basis for reversing Mehanna’s
convictions. First, the jury’s general guilty verdict on Counts I-III eliminates any
sufficiency challenge to those counts based on Mehanna’s propaganda activities.
Because the evidence was more than sufficient to support Mehanna’s convictions
based on the government’s other, non-speech theories, including Mehanna’s
Yemen trip, this Court need not consider whether the evidence of Mehanna’s
propaganda activities also supported those same convictions. In any event,
because the evidence amply established that Mehanna engaged in propaganda
activities “in coordination with, or at the direction of, a foreign terrorist
organization,” Holder v. Humanitarian Law Project (HLP), 130 S.Ct. 2705, 2722
(2010), Mehanna’s convictions were lawful. Mehanna’s own statements showed
that his propaganda activities were in response to Al-Qa’ida’s call and that he was
pleased to be associated with Al-Qa’ida through his work. Moreover, Mehanna
knew that At-Tibyan translated propaganda in direct response to Al-Qa’ida’s
requests, and he performed translations to further At-Tibyan’s goal of assisting Al-
Qa’ida.
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The district court did not err in refusing to give Mehanna’s proposed First
Amendment instruction. The court’s instruction correctly stated the law and
tracked the Supreme Court’s language in HLP. The court’s instruction made clear
that only conduct in coordination with or at the direction of a terrorist organization
violated the statute and that independent advocacy, even if done with the purpose
of advancing its goals, did not violate the statute. That instruction was sufficient
to ensure that Mehanna was not convicted for any activity protected by the First
Amendment. Moreover, Mehanna’s proposed instruction was not substantively
correct, because it stated erroneously that “coordination” requires “direct contact”
with the terrorist organization. In any event, any instructional error was harmless.
The overwhelming evidence related to the Yemen trip, together with the jury’s
guilty verdict on Count VII (establishing that the jury rejected Mehanna’s defense
that he went to Yemen to investigate schools) and Count IV (establishing that
Mehanna participated in a conspiracy to kill U.S. troops in Iraq), make clear that
the jury must have found all the facts necessary to convict Mehanna on Counts I-
III based on the Yemen conduct alone.
The district court properly rejected Mehanna’s demand that the government
produce evidence that he had declined a government agent’s solicitation to commit
terrorism crimes. The government has no such evidence. In response to
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Mehanna’s related motion in this Court, the government previously submitted
under seal material establishing that the district court did not abuse its discretion
in rejecting Mehanna’s discovery request.
The district court did not abuse its broad discretion under Fed. R. Evid. 403
in admitting Al-Qa’ida videos and other jihadist materials that Mehanna viewed,
commented on, or distributed; or in admitting Mehanna’s online discussions about
his jihadist views. Much of the evidence Mehanna claimed was unfairly
prejudicial came from his own computer, and was highly probative of his intent to
support Al-Qa’ida. The evidence was also powerfully probative in refuting
Mehanna’s claim that his own interpretation of Islam precluded him from
supporting Al-Qa’ida or terrorism. In response to repeated defense objections
throughout the trial, the district court’s analysis of the potential for unfair
prejudice was careful and well-considered. And the court’s admission of the
disputed materials was consistent with rulings in other terrorism cases, which have
permitted evidence of terrorism-related materials where they are probative to
establish a defendant’s knowledge, intent, and motive.
The district court did not abuse its discretion in excluding two of the eight
expert witnesses that Mehanna offered at trial. The points that the experts would
have supported – that Al-Qa’ida videos were not effective in producing recruits
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and that government expert Evan Kohlmann’s opinions were not based on
scientific standards – were of questionable relevance because whether the videos
were actually successful in generating Al-Qa’ida recruits was not at issue in the
case. In addition, the evidence was cumulative and its exclusion was harmless,
because defense expert Dr. Marc Sageman gave the same opinions as would have
been expressed by the excluded experts.
Mehanna’s lies about Maldonado’s whereabouts and terrorist activities were
“material” for purposes of 18 U.S.C. 1001(a)(2). The statements had a natural
tendency to influence a government investigation; in fact Maldonado and his
activities were the subject of the investigation at issue. Mehanna’s claim that his
statements were not material because they failed to sidetrack the government’s
investigation conflicts with well-settled law.
The district court’s imposition of a below-Guidelines sentence of 210
months did not violate the Ex Post Facto Clause. The court’s application of a
November 2004 Guidelines amendment does not implicate ex post facto principles
because the offenses charged in Counts I-IV continued well beyond that date. And
even if none of Mehanna’s conduct after he returned from Yemen applies to
Counts I-IV, the “one-book rule” permits application of the November 2004
amendment because the conduct underlying the false statement counts continued
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at least through 2006. This rule applies to a series of offenses, like Mehanna’s,
that are properly “grouped” under the Guidelines. Finally, any error was harmless.
The district court made clear at sentencing that it would have imposed the same
sentence based on the sentencing factors in 18 U.S.C. 3553A, regardless of
whether or not the November 2004 amendment was applicable.
ARGUMENT
I. MEHANNA’S “NON-SPEECH” CHALLENGES LACK MERIT.
Mehanna argues first (Br. 22-35) that “The Government’s Non-Speech
Theories Cannot Support the Convictions under Counts I-IV.” This section of his
brief jumbles together sufficiency challenges, evidentiary arguments, variance
claims, and other arguments (some no longer than a sentence or two). Although
difficult to parse, we have divided it into 13 actual or potential claims. Each lacks
merit.20
A. Overwhelming Evidence Regarding The Yemen Trip Supports Mehanna’s Convictions On Counts I-IV.
1. Standard Of Review
20An amicus brief submitted by the National Association of Criminal Defense Lawyers (NACDL) and signed by a former Mehanna attorney attempts to raise additional claims including a bill of particulars challenge (Br. 11, 30) and a constructive amendment claim (Br. 29). As these claims are not properly raised by an amicus, we do not respond to them.
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Mehanna raises six arguments as to why the evidence regarding his Yemen
trip did not support his convictions on Counts I-IV. The denial of a motion for
judgment of acquittal is reviewed de novo. United States v. Chiaradio, 684 F.3d
265, 281 (1st Cir. 2012); see D359 (Rule 29 motion), D379 (same). Defendants
bear a “heavy burden” in mounting a sufficiency challenge. United States v.
Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005). The Court “‘scrutinizes the
evidence in the light most compatible with the verdict, resolve[s] all credibility
disputes in the verdict’s favor, and then reach[es] a judgment about whether a
rational jury could find guilt beyond a reasonable doubt.’” United States v.
Merlino, 592 F.3d 22, 29 (1st Cir. 2010) (quoting United States v. Olbres, 61 F.3d
967, 970 (1st Cir. 1995)). The Court must examine all the evidence submitted to
the jury, regardless of whether it was properly admitted, United States v. Diaz, 300
F.3d 66, 77 (1st Cir. 2002), and must consider “all reasonable inferences drawn
therefrom.” United States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012).
2. The Purpose Of The Yemen Trip
Mehanna appears to argue that the government failed to prove that he
traveled to Yemen for an unlawful purpose. Br. 22, 29, 30 (Yemen case “thin”
and “frail”). In fact, the evidence overwhelmingly showed that Mehanna went to
Yemen for terrorist training and planned to kill U.S. troops in Iraq.
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1. Mehanna himself repeatedly acknowledged the illicit purpose of his
Yemen trip. In a recorded conversation, for example, Mehanna described how he
and Abousamra crisscrossed Yemen searching for Pippin’s contacts and expressed
frustration that their venture failed. GX459(CA00383) (“I was in a very bad
psychological state because [Pippin] kinda got our hopes up ....”); id. at CA00385
(after learning that terrorist camps were gone, Mehanna thought, “I’ve left my life
behind ... because [Pippin] didn’t know what the heck he was talking about”).
Likewise, in an obvious reference to the Yemen trip, Mehanna told his future
fiancée that he had “interview[ed]” for jihad. See supra at 18. And in speaking of
what his parents knew about Yemen, Mehanna conceded: “they know I didn’t go
there to graze goats.” GX461(CA00446).21
2. Mehanna’s inner circle corroborated these statements at trial.
Abuzahra described the trip from beginning to end, leaving no doubt that he,
Mehanna and Abousamra shared a common goal. 22/110 (“We went there for the
purpose of finding a terrorist training camp,” and hoped “[e]ventually to go get
21Tellingly, Mehanna never suggested that his goal differed from that of Abousamra or Abuzahra, even after he knew the FBI was investigating. Instead, all three men continued to discuss the trip in terms of what “we” did. See, e.g., GX461(CA00434) (regarding what Abousamra told Maldonado, Mehanna states “I don’t think ... Ahmad sat down and said look we went to this place to fight.”); GX461(CA00437) (after Abuzahra observes that “the way we left [for Yemen] it was very obvious what was going on,” Mehanna agrees).
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into Iraq.”), 22/134 (Abuzahra, Mehanna and Abousamra agreed to “[p]articipate
in Jihad against the U.S.”), 23/40 (on plane, Mehanna expresses excitement that
“we’re actually doing it”).22
Mehanna told Maldonado that the three men were hoping to “make it to
somewhere where there was fighting,” i.e., “Iraq.” 17/131; see also
GX461(CA00430, CA00436) (Mehanna acknowledges that “Dan [i.e. Maldonado]
knows everything” and worries that “he [can’t] keep his mouth shut”).
Mehanna told Masood that he was going to Yemen because “there was an
obligation for Muslims to stand up and fight against invasion of Iraq and the U.S.
forces in Iraq.” 14/39; see 14/37 (Masood: “They wanted to go to Yemen because
they wanted to find training camps there” and “[f]ight in Iraq.”); 14/135. After
Mehanna returned from Yemen, he told Masood that he and Abousamra had a hard
time locating their contacts and were ultimately told they could not get training in
Yemen. 14/43-45, 14/135-36.
Spaulding, too, testified that, according to Abousamra, he and Mehanna
went to Yemen for “terrorist training.” 20/28-32. In addition, Mehanna told
22The government’s proof regarding the Yemen trip did not “rest mainly” on Abuzahra. Br. 30. But even if it had, Abuzahra’s testimony alone would have been sufficient to convict. United States v. Meises, 645 F.3d 5, 12 (1st Cir. 2011).
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Spaulding that he was “disillusioned with their lack of success.” Ibid.23
3. Other evidence also confirmed that Mehanna went to Yemen for
jihad, including: (1) Pippin’s testimony that he invented the “visiting Yemeni
schools” story as a ruse, see supra at 13; (2) Mehanna’s decision to abandon
pharmacy school mid-semester;24 (3) the fact that Abuzahra (a Salafi-Jihadi on a
martyrdom mission) paid for Mehanna’s trip, see supra at 14; (4) Mehanna’s
promise to a British jihadist that God would reward him for sponsoring Mehanna’s
trip, see supra at 14; (5) Mehanna’s instructions to Tamer to dispose of
incriminating evidence after he left, see supra at 15; (6) Mehanna’s drama-filled
email from Abu Dhabi, see supra at 15; (7) Mehanna’s obsession with who
“knew”about the Yemen trip, see supra at 17; (8) Mehanna’s online discussion
just before the Yemen trip about who could engage in jihad, see supra at 14; and
(9) Mehanna’s contempt for moderate Islam, see, e.g., Tr. 18/21, GX669(65, 66),
23Ali Aboubakr, a young recruit whom Mehanna did not fully trust, was later told that Mehanna had “gone to a school to go learn in Yemen.” 8/94, 20/53. But even Aboubakr understood the real purpose of the trip. GX617 (Aboubakr and Mehanna discuss going to Yemen to “donate blood”); see also 9/148 (Aboubakr testifies he does not know anyone who went to Yemen to study).
24Why would Mehanna miss two weeks of classes to visit foreign schools he might attend sometime in the distant future? To fix this flaw in his defense, Mehanna claimed that the Yemen trip occurred during a “semester break.” 3/72, 24/109-10. After the government disproved this assertion at trial, 26/19-20; GX799, Mehanna admitted at sentencing that it was false. Presentence Report 47.
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which included the Dar al-Mustafa school.
As for Mehanna’s “Aman” claim, he presented no substantial evidence that,
at the time of his Yemen trip, he believed that Muslims living in the United States
could not engage in jihad. In fact, Mehanna’s pre-Yemen writings make a
mockery of this defense. GX347 (Mehanna poem praises 9/11 hijackers for
“deceiv[ing] the enemy as you dwelt in their lands, Waiting for Allaah to punish
them by your hands”).
Accordingly, the jury correctly rejected Mehanna’s incredible claim that he
traveled to Yemen to check out some schools. As Mehanna himself put it:
“people are not freakin idiots.” GX461(CA00439) (explaining to Abuzahra how
Maldonado knew about the purpose of the Yemen trip).
3. An Intent To Commit Murder
Mehanna contends that his “vaguely aspirational” plans with Abousamra
did not amount to an intent to commit murder. Br. 27 (no “concrete object [was]
in view”), 18. In fact, the evidence overwhelmingly demonstrated that (1)
Mehanna’s goal was to enter Iraq to fight U.S. soldiers, 17/131; (2) Mehanna
believed he had a religious duty to engage in violent jihad in Iraq, 14/37-39,
14/135; (3) Mehanna steeped himself in propaganda that portrayed killing
Americans as the cure for Muslim problems, see, e.g., GX449 and 450; and (4)
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Mehanna harbored intense antipathy towards American soldiers whom he viewed
as “valid targets,” 23/77, 14/132, 23/61 (Mehanna’s status message portrayed
mutilated corpses of U.S. soldiers). This evidence more than sufficed to show an
intent to murder. United States v. Amawi, 695 F.3d 457, 475-77 (6th Cir. 2012)
(evidence sufficient to show Section 956 conspiracy where, inter alia, defendant
stated that he “wanted to go perform jihad against the U.S. troops overseas”).
4. A Substantial Step
Mehanna also contends (Br. 33-35) that the evidence relating to Count III
failed to show a “substantial step” towards completing a Section 2339A crime.
See United States v. Burgos, 254 F.3d 8, 12 (1st Cir. 2001) (attempt requires a
“substantial step”). Although Count III charges an attempt, it incorporated other
theories of liability too, including aiding and abetting and co-conspirator liability
under Pinkerton v. United States, 328 U.S. 640 (1946). Thus, even if correct,
Mehanna’s “substantial step” argument would not undermine this conviction.
And it is not correct. “[S]ubstantial step analysis necessarily begins with a
proper understanding of the crime being attempted.” United States v. Farhane,
634 F.3d 127, 147 (2d Cir. 2011). Here, contrary to Mehanna’s claim (Br. 34), the
attempted crime was not murder but the provision of material support to be used in
preparation for or in carrying out murder.
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In going to Yemen in search of jihad, Mehanna took a substantial step
toward completing this crime. “[T]he defendant does not have to get very far
along the line toward ultimate commission of the object crime in order to commit
the attempt offense.” United States v. Doyon, 194 F.3d 207, 211 (1st Cir. 1999).
Indeed, “the defendant’s arrival at the scene ready to commit the crime has been
found adequate to constitute a substantial step[.]” Ibid. Although Doyon suggests
that “some debate” might be appropriate if a defendant merely traveled to the
anticipated scene with a “very general” intent, id. at 212, here, of course, there can
be no debate: Mehanna’s intent was highly specific and he not only traveled to
Yemen, he hunted down Pippin’s contacts in order to commit murder in Iraq.
Given the overwhelming evidence of his intent beforehand, see supra at 7-15, and
his actions once there, Mehanna’s Yemen trip went far beyond a “substantial step”
toward a material support offense. D439(62) (district court notes that Yemen trip
was “no less a serious attempt for its failure”).25
25Mehanna claims that “his return flight home was a ‘complete and voluntary renunciation’ of [his] plan[.]” Br. 35. Even if Mehanna could raise a new defense on appeal (he cannot), he never renounced his plan. GX459(CA00409) (“I didn’t regret it for a second”); Doyon, 194 F.3d at 212 (affirmative defense of voluntary abandonment not available to defendant “whose attempt was frustrated”).
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5. An Al-Qa’ida Link
Mehanna argues (Br. 22) that the Yemen evidence failed to support Count I
(Conspiracy to Provide Material Support to Al-Qa’ida) because (1) “[t]here was no
evidence of an Al-Qa’ida presence in Yemen in February, 2004”; and (2) there
was no evidence of “an al-Qaida link to Mehanna’s Yemen plans.”
But the evidence did show an Al-Qa’ida presence in Yemen in February
2004. 27/93, 28/9-10, 28/119-21, 31/9-10. Indeed, Mehanna himself described
Ma’rib in Yemen as “a wild land ... full of bandits and al-Qa’ida.” GX696(49-50).
In any event, whether Al-Qa’ida was actually in Yemen does not matter because a
defendant can conspire to commit a factually impossible offense. United States v.
Dixon, 449 F.3d 194, 202 (1st Cir. 2006).
Further, the jury could infer that Al-Qa’ida was one of the terrorist groups
that Mehanna hoped to find on his trip. Al-Qa’ida operated terrorist training
camps in Yemen in the early 2000s, 28/9, 28/119-20, 30/63-70, and Mehanna
knew it operated there: his “favorite” video, “The State of the Ummah,” ends with
Al-Qa’ida’s bombing of the U.S.S. Cole in Aden, Yemen in 2000. GX450; see
10/70; see also 26/126, 27/92-93 (describing Yemen’s “very important role in Al-
Qa’ida since its inception”). Moreover, the Egyptian perfume seller, who was one
of Pippin’s sources with whom Mehanna met in Yemen, had an Al-Qa’ida
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connection, as he was affiliated with a group that had merged with Al-Qa’ida.
16/71.
Nor can there be any doubt that, had he located an Al-Qa’ida camp,
Mehanna would eagerly have joined up. Mehanna adored Al-Qa’ida and
worshiped Osama Bin Laden, its leader, as his “true father.” See supra at 8.
Moreover, his statement to his future fiancée that he was turned away by “that
company” is likely a reference to Al-Qa’ida. See supra at 18; see also 27/81
(“company” often used as code for a jihad organization such as Al-Qa’ida).
Evidence of Mehanna’s intentions can also be found in the Egyptian perfume
seller’s response to his inquiries: “all that stuff is gone ever since the planes hit
the twin towers.” GX459(CA00383-385). This clear allusion to Al-Qa’ida’s most
spectacular terrorist attack further confirms that Mehanna’s Yemen plan included
(even if it was not limited to) providing material support to Al-Qa’ida.
6. Mehanna’s Claim That He Did Not Intend Or Agree To Kill While Abroad
Counts II and III charged Mehanna with conspiring and attempting to
provide material support in preparation for, or in carrying out, inter alia, a
violation of 18 U.S.C. 2332. Section 2332(b) makes it a crime for someone
“outside the United States [to] attempt[ ] to kill, or engage[ ] in a conspiracy to
kill, a national of the United States.” Mehanna argues (Br. 27-28) that the
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evidence failed to show a Section 2332(b) crime because (1) “there was no
evidence of foreign conspirators”; and (2) “the only evidence of any foreign
agreement was the objective evidence that the group disbanded ... before any
actual plan to kill could be formed abroad.”
Mehanna is wrong from the start. Counts II and III did not require proof
that, while abroad, Mehanna conspired or attempted to kill a U.S. national.
Instead, to be guilty on these counts, Mehanna need only have conspired or
attempted in the United States to provide material support in preparation for or in
carrying out a Section 2332(b) offense. And even if Counts II and III did require
such proof, the trial evidence more than sufficed. Mehanna and Abousamra first
conspired to kill U.S. troops while in the United States but that conspiracy
continued during their week-long hunt in Yemen for terrorist training and
Abousamra’s further journey to Fallujah, Iraq. Accordingly, although not
required, the evidence proved that Mehanna violated Section 2332(b).
7. The “Legal Impossibility” Claim
Mehanna contends that it was “legally impossibl[e]” for Section 956
(conspiracy to kill abroad) to serve as the contemplated offense for his material
support convictions under Section 2339A. In Mehanna’s view, the intended
recipients of the material support he conspired to provide were “by definition ...
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contemplated to be abroad,” Br. 26, and so it was impossible for them to violate
Section 956, which requires that the defendant conspire “within the United
States.”
Mehanna cites no authority for this argument. More fundamentally, the
premise on which he relies – that the potential violators of Section 956 to whom
he conspired to provide support were necessarily abroad – is false. Among others,
Mehanna conspired to provide support to Abousamra and Abuzahra, who
conspired in the United States (as the jury found in convicting Mehanna on Count
IV), to violate Section 956 by killing U.S. soldiers in Iraq. Mehanna provides no
reason (statutory or otherwise) why the U.S.-based conspiracy to kill Americans
abroad that Abousamra, Abuzahra, and Mehanna formed (and for which Mehanna
was separately convicted), cannot serve as the contemplated offense for
Mehanna’s convictions under Section 2339A. To the extent that Mehanna may be
assuming that his convictions on Counts II-IV are multiplicitous, any such claim is
both forfeited and incorrect. A defendant who joins a conspiracy and who also
conspires to provide material support to such a conspiracy may properly be
punished under both Section 956 and Section 2339A because those offenses
require proof of distinct elements. United States v. Hassoun, 476 F.3d 1181,
1185-89 (11th Cir. 2007) (separate convictions for Section 2339A (including
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conspiracy) and underlying Section 956 predicate offense were not multiplicitous,
despite factual overlap in proof). The factual distinction between the Section
2339A offenses and the underlying Section 956 offense is especially clear where,
as here, the Section 2339A offense is based in part on concealment of the material
support.
Even if Mehanna intended to provide material support only to Al-Qa’ida
terrorists outside the United States, that support would still have been intended “to
be used in preparation for, or in carrying out, a violation of section ... 956” and
therefore violate Section 2339A. While the predicate Section 956 conspiracy
began with the agreement among Mehanna and his group in the United States to
attack U.S. soldiers in Iraq, they intended to continue that conspiracy overseas and
to include within it the Al-Qa’ida terrorists to whom they intended to provide
themselves as support. That support was therefore intended to be used in carrying
out the group’s continuing violation of Section 956, and it makes no difference
that the intended recipients of the material support were abroad. See United States
v. Jayyousi, 657 F.3d 1085, 1104-05 (11th Cir. 2011) (upholding convictions
under Section 2339A for supporting Section 956 predicate conspiracy where
recipients of the material support were terrorist groups overseas).
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Finally, even if some error existed (none does), the problem would not be
one of “legal impossibility” but rather a mere insufficiency of proof. Because the
government charged and proved an alternative theory of liability on Counts II and
III involving Section 2332(b), this failure of proof would have no effect on the
jury’s general verdicts. See infra at 61-63.
B. The Attorney General Was Not Plainly Required To Issue A Certification Under 18 U.S.C. 2332(d) In Connection With Counts II And III.
For the first time, Mehanna suggests (Br. 28) that Section 2332 cannot serve
as the contemplated crime for his material support convictions on Counts II and III
because the Attorney General did not certify under Section 2332(d) that these
offenses were “intended to coerce, intimidate, or retaliate against a government or
civilian population.” On its face, Section 2332(d)’s certification requirement
applies only to a “prosecution for any offense described in this section,” i.e., a
prosecution under Section 2332 itself. Since Counts II and III both charged
crimes under Section 2339A, Section 2332(d)’s certification requirement is
inapplicable. At the very least, the district court did not plainly err in failing sua
sponte to require a certification. See United States v. Siddiqui, 699 F.3d 690, 700
(2d Cir. 2012) (certification must be filed “either at the time or before the filing of
the first instrument charging a violation of § 2332”) (emphasis added); United
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States v. Yousef, 327 F.3d 56, 116 (2d Cir. 2003) (“Section 2332(d) limits the
Justice Department’s prosecution of crimes under § 2332 ....”); Fed. R. Crim. P.
52(b).
C. The Court Should Reject Mehanna’s Variance Claims And Evidentiary Challenges.
Mehanna alleges several variances and makes related evidentiary claims.
Br. 30-34. These arguments (a few preserved, most not) provide no basis for
overturning his convictions on Counts I-IV.
1. Standards of Review
a. “A variance occurs when ... the evidence adduced at trial
proves different facts than those alleged in the indictment.” United States v.
Mangual-Santiago, 562 F.3d 411, 421 (1st Cir. 2009) (internal citation and
quotations omitted). Where a variance exists, reversal is required only if the
defendant shows prejudice. United States v. Tavares, 705 F.3d 4, 16 (1st Cir.
2013). “Prejudice in this context is found when, for example, ‘the variance ... le[ft
the defendant] so in the dark about the charge against h[im] that [ ] he could not
prepare a defense or plead double jeopardy to stop a second prosecution for the
same crime.’” Ibid. (quoting United States v. Seng Tan, 674 F.3d 103, 110 (1st
Cir. 2012)).
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A variance claim that is preserved in the district court is subject to de novo
review. United States v. Mubayyid, 658 F.3d 35, 54 (1st Cir. 2011). An
unpreserved variance claim is reviewed for plain error. United States v. DeCicco,
439 F.3d 36, 43-44 (1st Cir. 2006). Under the plain error test, the defendant must
prove (1) an error; (2) which was “clear and obvious”; (3) that affected substantial
rights; and (4) that, absent reversal, would cause a miscarriage of justice. United
States v. Olano, 507 U.S. 725, 732 (1993); Fed. R. Crim. P. 52(b).
b. “[A]dequately preserved objections to rulings admitting or
excluding evidence [are reviewed] for abuse of discretion.” United States v.
Rodriguez, 525 F.3d 85, 95 (1st Cir. 2008). An error is harmless if it is “highly
probable that the error did not influence the verdict.” Ibid. (internal citations and
quotations omitted). Evidentiary challenges not preserved by a timely objection at
trial are reviewed for plain error only. Ibid.
2. Co-Conspirators In The United Kingdom
Mehanna complains of variance (Br. 30) because the indictment did not
name his British co-conspirators. This claim was arguably preserved below.
D374. But an indictment need not identify all co-conspirators. United States v.
Pierre, 484 F.3d 75, 80-83 (1st Cir. 2007); United States v. Hallock, 941 F.2d 36,
41 (1st Cir. 1991). Moreover, the indictment here notified Mehanna of the
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existence of unnamed co-conspirators. See, e.g., D83(1) (Mehanna and
Abousamra conspired with others “known and unknown to the Grand Jury”).
And, it alleged as overt acts Mehanna’s propaganda activities on Al-Qa’ida’s
behalf, in which his British co-conspirators participated. See, e.g., D83(5-8).
Accordingly, Mehanna fails to show any prejudicial “variance” between the
indictment and the trial evidence.
Although Mehanna complains (Br. 30) that some information relating to
these British co-conspirators was produced three weeks before trial, he advances
no related legal claim. Likewise, in a separate section of his brief (Br. 59),
Mehanna suggests that the district court admitted statements from seven
individuals (including the British co-conspirators) in violation of the co-
conspirator exception to the hearsay rules. See also NACDL Br. 20-22. The
district court found that these individuals were co-conspirators, D418(55) (charge
conference), and Mehanna’s entirely perfunctory argument to the contrary does
not suffice to show “clear error” on appeal. United States v. Newton, 326 F.3d
253, 257 (1st Cir. 2003) (deferential standard of review for Petrozziello rulings
“places a heavy burden on a defendant”); United States v. Zannino, 895 F.2d 1, 17
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(1st Cir. 1990) (perfunctory arguments deemed waived).26
3. Evidence Regarding The Domestic Attacks
Mehanna also claims variance (Br. 31) because evidence that his group
considered domestic attacks after Abousamra’s Pakistani contact suggested this
approach, see supra at 12, was not disclosed in the indictment. This claim was not
preserved below. No plain error occurred because an indictment need not preview
all of the government’s trial evidence. Nor did this testimony vary from the
indictment’s theories. Count I alleged a conspiracy, “[b]eginning in or about
2001,” between Mehanna, Abousamra and others to provide material support to
Al-Qa’ida. D83(1). The group’s discussions in 2003 about possible domestic
attacks were fully consistent with that theory. Pierre, 484 F.3d at 80-83.
Mehanna’s reliance (Br. 19, 25) on United States v. Dellosantos, 649 F.3d
109 (1st Cir. 2011), is entirely misplaced. See also NACDL Br. 11, 24-27. In
Dellosantos, the government charged a “Maine-based conspiracy to distribute both
cocaine and marijuana” but the evidence as to two defendants showed their
26Mehanna also criticizes the government for naming Bin Laden and other Al-Qa’ida leaders as “unindicted co-conspirators.” Br. 30, 58-59, see also NACDL Br. 11, 18, 22-24. The district court found that no findings under United States v. Petrozziello, 548 F.2d 20, 22-23 (1st Cir. 1977), were necessary as to Al- Qa’ida leaders because Mehanna was unable to identify any statements from them that were admitted for their truth. D418(46-56). Mehanna has not corrected this deficiency on appeal.
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involvement in a separate Massachusetts-based conspiracy to distribute cocaine.
Id. at 125. Those two defendants were tried with 16 other defendants and
“subjected ... to voluminous testimony relating to unconnected crimes in which
they took no part.” Ibid. Here, Mehanna was the sole defendant at trial and the
evidence all related to crimes in which he participated as charged in the
indictment.
4. Abousamra’s Trips To Pakistan
Next, Mehanna challenges (Br. 31) the evidence about Abousamra’s trips to
Pakistan in 2002. See supra at 11-12. This evidence, inter alia, shed light on the
purpose of the later Yemen trip and explained communications between Mehanna
and Abousamra in 2006 when they tried to renew Abousamra’s Pakistani contacts
in another attempt at jihad. GX583, GX592; 15/100-101. The evidence was
admitted without objection.
Mehanna objects to Abousamra’s statements to Masood about his Pakistan
trips. 14/ 20-27. These statements were admissible as co-conspirator statements.
Mehanna had joined a conspiracy to provide material support to terrorists at the
time the statements were made, GX296(TAO2954), GX449, GX450, GX778,
GX623; 23/85, 23/96, and even if he had not, the statements would still be
admissible. Fed. R. Evid 801(d)(2)(E); United States v. Saccoccia, 58 F.3d 754,
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778 (1st Cir. 1995) (defendant who joins existing conspiracy effectively adopts
co-conspirator declarations previously made). These statements were also
admissible as statements against Abousamra’s interest under Fed. R. Evid.
804(b)(3).
Moreover, even if Abousamra’s statements to Masood were inadmissible
hearsay, Mehanna suffered no prejudice because Abousamra made similar
admissible statements to others. 15/100-01 (Abousamra tells Pippin about
Pakistan trips as part of his efforts to obtain Yemen contacts); 20/34 (Abousamra
tells Spaulding about his two trips to Pakistan). Further, no relief would be
appropriate under the plain error standard because Mehanna’s failure to object to
this testimony was likely strategic. Testimony about Abousamra’s earlier trips to
Pakistan supported Mehanna’s claim that Abousamra was more fervent than
Mehanna was, see supra at 32, and might have permitted the jury to infer (or so
Mehanna may have reasoned) that the two went to Yemen with different goals in
mind.
5. Mehanna’s Discussion With Maldonado And Hammami.
Mehanna objects (Br. 31-32) to Maldonado’s testimony (18/28-30) that, in
August 2006, Maldonado met in Egypt with Mehanna and Hammami and talked
about Somalia and other topics. See supra at 26. No objection was preserved.
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Mehanna complains that this conversation “had nothing to do with Yemen.”
Br. 32. While this is true, it did relate to Maldonado’s subsequent trip to Somalia,
which was the critical backdrop to the false statement charges in Counts V and VI.
Accordingly, admitting this testimony was not plain error.
6. Abuzahra’s Statements To Masood About Why He Returned From Abroad
Mehanna argues (Br. 32-33) that Masood should not have been allowed to
testify about Abuzahra’s statement that he (Abuzahra) abandoned the Yemen trip
because “his wife found out” and he “couldn’t leave [her] and he didn’t want to
go.” 14/43. Over defense objection, this testimony was correctly admitted as a
co-conspirator statement under Fed. R. Evid. 801(d)(2)(E). 14/43 (“update on the
status of the conspiracy” is admissible); accord United States v. Rivera-Donate,
682 F.3d 120, 132 (1st Cir. 2012); see also 23/105-06 (Abuzahra continues
coverup in August 2006 by lying to the FBI).
In any event, any error could only have been harmless. Abuzahra’s reason
for coming home had no obvious bearing on why Mehanna himself went to
Yemen. Moreover, any adverse inference that might be drawn from Abuzahra’s
statement was a mere drop in an overflowing bucket of incriminating proof that
included Mehanna’s own admissions to Masood about his search in Yemen for a
terrorist training camp and his statement to Spaulding that Abuzahra “chickened
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out” on the Yemen trip. 14/43-45, 20/28.
7. Abousamra’s Statements Before And After The Yemen Trip
Finally, Mehanna suggests (Br. 33) that his conspiracy with Abousamra
lasted only during the Yemen trip so that any statements Abousamra made before
or after that trip were not co-conspirator statements. This argument lacks merit.
The indictment alleges several longstanding conspiracies between Mehanna and
Abousamra, D83, and the evidence supported these allegations. In particular, and
contrary to Mehanna’s claim, Br. 33, his group had already agreed to “do
something” before Abousamra’s visit to Pippin in late 2003, 22/134–47, 23/4-5,
and even if it had not, Abousamra’s statements would still have been admissible.
Saccoccia, 58 F.3d at 778. Moreover, after the Yemen trip, Mehanna and
Abousamra continued to conspire by, inter alia, seeking to participate in jihad and
attempting to conceal their activities. GX583, GX585, GX592; see 23/65-69
(district court finds conspiracy with Abousamra did not end after Yemen trip).
And, even if error had occurred, it would have been harmless given all of
Mehanna’s own incriminating statements regarding the Yemen trip. See supra at
17-18.
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II. THE COURT SHOULD REJECT MEHANNA’S FIRST AMENDMENT ARGUMENTS.
While the United States was battling Al-Qa’ida insurgents in Iraq, Mehanna
created English-language versions of Al-Qa’ida propaganda that, inter alia, urged
Muslims to employ suicide bombings against American forces. See supra at 23.
In so doing, Mehanna intended to render material support to Al-Qa’ida and he
understood that he was working at Al Qa’ida’s behest. See supra at 24-25.
Mehanna nonetheless argues (Br. 35-53) that his material support convictions on
Counts I-III must be reversed because the First Amendment protected these
activities. He is wrong. No related sufficiency-of-the-evidence challenge can be
raised on appeal and the evidence was sufficient in any event. Likewise, the
district court’s jury instructions fully protected Mehanna’s First Amendment rights
and if instructional error had occurred (none did), it was harmless.
A. Mehanna’s Sufficiency-Of-The-Evidence Challenge
1. The Jury’s General Guilty Verdicts On Counts I-III Eliminate Any Sufficiency Challenge Related To Mehanna’s “Speech” Activities.
Mehanna’s First Amendment challenge is limited to Counts I-III. Br. 35.27
27These counts involve two material support statutes (Sections 2339A and Section 2339B), which raise different potential First Amendment issues. Mehanna directs his First Amendment arguments primarily to Section 2339B, which proscribes the knowing provision of material support to an FTO. Section 2339A
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These counts permitted the jury to convict based upon multiple theories, including
Mehanna’s Yemen trip. 35/25 (jury instructed that it must “unanimously agree as
to the manner in which the defendant conspired to provide material support and
resources”). In Griffin v. United States, 502 U.S. 46, 59-60 (1991), the Supreme
Court held that a general guilty verdict cannot be overturned for insufficient
evidence as long as the evidence sufficiently supported any one ground for
conviction. Because the government’s evidence on its non-speech related
theories, including Mehanna’s Yemen trip, more than sufficed to support Counts I-
III, see supra at 39-52, Griffin eliminates any need to reach Mehanna’s sufficiency
challenge to his propaganda-related activities. See United States v. Capes, 486
F.3d 711, 717-19 (1st Cir. 2007).
does not prohibit providing material support to an FTO but makes it a crime to knowingly provide material support in preparation for or in carrying out one of several specified crimes. Mehanna makes no effort to show why speech-related material support that otherwise violates Section 2339A would be protected under the First Amendment. See Dennis v. United States, 341 U.S. 494, 545 (1951) (Frankfurter, J., concurring) (“[O]ur decisions [distinguish] between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken.”). In any event, this Court need not decide how the First Amendment may apply to Section 2339A because the district court used the same defendant-friendly definition of material support for Counts II and III (the Section 2339A charges) as it did for Count I (the Section 2339B charge), i.e., the requirement of “coordination” with an FTO. 35/22-24, 26, 28, 31.
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In arguing to the contrary (Br. 36), Mehanna quotes Yates v. United States,
354 U.S. 298, 312 (1957), which stated that reversal is required where “‘the
verdict is supportable on one ground, but not on another, and it is impossible to
tell which ground the jury selected[.]’” But Griffin clarified that this language
does not apply to sufficiency claims. 502 U.S. at 51-60.28
2. The Evidence Relating To Mehanna’s Propaganda Campaign Was Sufficient To Sustain The Jury’s Verdicts On Counts I-III.
Although the Court need not reach this issue, the government’s evidence on
its alternative theory regarding Mehanna’s propaganda campaign also proved his
guilt.
a. Holder v. Humanitarian Law Project
Mehanna asks this Court to consider whether Congress can prohibit material
support to FTOs that takes the form of political speech. Br. 35-54. The Supreme
Court recently addressed this issue in Holder v. Humanitarian Law Project, 130
S.Ct. 2705 (2010) (HLP).
28Other theories of liability supported by sufficient evidence included Mehanna’s efforts to conceal the provision of material support by, inter alia, lying about the whereabouts and activities of Abousamra and Maldonado. See supra at 17, 27-28; 35/82.
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In HLP, organizations and individuals who wished to facilitate the lawful,
nonviolent purposes of designated FTOs brought a pre-enforcement challenge to
Section 2339B. They claimed, inter alia, that they wanted to engage in “political
advocacy” on behalf of FTOs, 130 S.Ct. at 2714, and argued that Section 2339B’s
prohibition on providing “material support” to such organizations violated the
First Amendment to the extent that it precluded them from doing so. Id. at 2716.
The Court held first that the statutory prohibition on providing material
support in the form of “personnel” or “services]” did not extend to advocacy
undertaken “entirely independently of the foreign terrorist organization.” HLP,
130 S.Ct. at 2721-22; see 18 U.S.C. 2339A(b)(1) (defining “material support” to
include “any ... service” and “personnel”); 18 U.S.C. 2339B(a)(1). “[Service,” the
Court concluded, refers to “concerted activity, not independent advocacy,” and
Section 2339B’s requirement that the “service” be rendered “to” an FTO
“indicates a connection between the service and the foreign group.” 130 S.Ct. at
2721-22. Accordingly, “a person of ordinary intelligence” “would understand the
term ‘service’ to cover advocacy performed in coordination with, or at the
direction of, a foreign terrorist organization.” 130 S.Ct. at 2722 (emphasis
added). Because the plaintiffs had not provided any “specific articulation” of the
political advocacy in which they hoped to engage, the Court left to another day
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“questions of exactly how much direction or coordination” the statute requires.
Ibid.; see id. at 2728-29.
The Court then found that Section 2339B was consistent with the First
Amendment, even under strict scrutiny review. HLP, 130 S.Ct. at 2722-30.
Congress, it reasoned, was justified (1) in determining that even peaceful aid to an
FTO could “serve[ ] to legitimize and further their terrorist means”; and (2) in
drawing a line at “material support coordinated with or under the direction of an
[FTO].” Id. at 2725-26. Noting that the State Department also concurred in
Congress’s findings, the Court stated that the Executive Branch’s evaluation “is
entitled to deference” given the “sensitive and weighty interests of national
security and foreign affairs” at stake. Id. at 2727. Finding that Section 2339B
(including its exclusion of “activities not directed to, coordinated with, or
controlled by foreign terrorist groups”) reflected a “careful balancing of interests,”
the Court rejected the plaintiffs’ claims that, as applied to their proposed activities,
the statute “violate[s] the freedom of speech.” Id. at 2728-30.29
29Mehanna and amici devote considerable attention to Brandenburg v. Ohio, 395 U.S. 444 (1969), and its “imminent lawless action” test. Br. 37-40, 46; Brief of Amici Curiae American Civil Liberties Union, et al., (ACLU Br.) 4-5, 7, 12-15, 21; Brief of Amicus Curiae Center for Constitutional Rights (CCR Br.) 3 n.1, 22- 23, 28 n.7. But HLP, not Brandenburg, provides the specific standard for how the First Amendment applies to speech that knowingly provides material support to an FTO. HLP, 130 S.Ct. at 2733 (Breyer, J., dissenting) (recognizing that, under
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b. The Sufficiency Of The Evidence
Under HLP, translation services render “material support” if they are
“directed to, coordinated with, or controlled by foreign terrorist groups.” 130
S.Ct. at 2728. The standard of review for sufficiency-of-the-evidence claims is
discussed supra at 40. The evidence here easily meets that standard.30
First, Mehanna’s translation activities were specifically “directed to” Al-
Qa’ida. As noted, Mehanna’s Salafi-Jihadi beliefs were, from the earliest days,
fueled by Al-Qa’ida’s propaganda. See supra at 8-9. Mehanna not only adopted
HLP, the material support statute lawfully prohibits speech even where “[no one contends” that the speech in question “can be prohibited as incitement under Brandenburg”).
The ACLU also argues (Br. 9-22) that HLP does not apply to “pure political advocacy.” This is wrong. HLP, 130 S.Ct. at 2729 (“[Plaintiffs propose to ‘engage in political advocacy on behalf of Kurds ...’”); id. at 2731-32 (Breyer, J., dissenting) (case involves “the communication and advocacy of political ideas”).
30Citing to United States v. Spock, 416 F.2d 165 (1st Cir. 1969), Mehanna contends that strictissimi juris review applies here. Br. 21. This doctrine requires particular proof that a defendant charged with conspiracy has embraced the unlawful purposes of a “bifarious undertaking involving both legal and illegal conduct.” Spock, 416 F.2d at 172. Mehanna cites no case applying it to a conspiracy to supply material support to terrorists. See HLP, 130 S.Ct. 2725-30 (Congress may properly prohibit supporting even peaceful non-violent activities of FTO). And even if it applied, Mehanna’s “unambiguous statements” and his own deeds demonstrated his specific intent to advance the illegal goals of both At- Tibyan and Al-Qa’ida. Spock, 416 F.2d at 173; see supra at 8-9, 24-26, and infra at 68-69.
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Al-Qa’ida’s worldview, but sought, even while “stuck” in the United States, to
answer its calls for aid. See supra at 18-26. Thus, while working for At-Tibyan,
Mehanna primarily translated Al-Qa’ida propaganda and considered it an honor to
be associated with the terrorist organization through his work. See supra at 23-25.
Second, Mehanna conspired and attempted to provide translation services
that were “coordinated with” Al-Qa’ida.31 HLP used the term “coordinated” to
describe “concerted” rather than “independent” activity. 130 S.Ct. at 2721-22.
This distinction comports with the common understanding of the word.
Webster’s Third New International Dictionary 501 (1993) (defining “coordinate”
as “to bring into a common action, movement, or condition”). As in HLP itself,
this case presents no occasion to determine the outer limits of “coordination”
because the term easily extends to services rendered to an FTO at the
organization’s own behest. See McConnell v. Federal Election Comm’n, 540 U.S.
93, 221-22 (2003) (“Congress has always treated expenditures made ‘at the
request or suggestion of’ a [political] candidate as coordinated”). Whether or not
they constitute political speech, translation services requested by an FTO are not
31Mehanna argues (Br. 43-44, 45-47) that he did not conspire to provide either “personnel” or “expert advice and assistance” to Al-Qa’ida in connection with his propaganda activities. These arguments are irrelevant because he conspired to provide it with “services.”
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“independent advocacy” on its behalf.32
Here, the evidence showed that At-Tibyan translated propaganda in direct
response to Al-Qa’ida requests. See supra at 21, 24-25; GX378, GX427; 13/20,
27/31-32.33 Further, it showed that Mehanna knew At-Tibyan coordinated with
Al-Qa’ida, GX427, and that, through his translations, he intended to further At-
Tibyan’s goal of aiding Al-Qa’ida. GX516, GX499(12-13). Standing alone, this
evidence sufficed. 35/26 (jury instructed that to find Mehanna guilty on Count I
conspiracy, it must find he “willfully joined in” an agreement “to provide material
support or resources to Al-Qa’ida”); United States v. Maryea, 704 F.3d 55, 73 (1st
Cir. 2013) (defendant must participate in the conspiracy knowingly and
voluntarily). The evidence regarding Mehanna’s propaganda activities also
supported his conviction on Count III (a substantive violation of Section 2339A)
on several theories, including aiding and abetting his At-Tibyan colleagues.
32The ACLU (Br. 16) suggests that “pure political advocacy” is not the kind of “fungible support” that can further the unlawful ends of an FTO. But Mehanna provided Al-Qa’ida with translation services and it is entirely foreseeable how such services could further Al-Qa’ida’s goals.
33An amicus brief submitted on behalf of, inter alia, scholars in the field of Islam (“Scholars’ Br.”) asserts (p.5) that “a reasonable person could not conclude that at-Tibyan was an outlet of an FTO[.]” The trial record, which that brief fails to address, proved otherwise.
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Although the evidence did not need to show that Mehanna worked on
specific translation projects that he knew were undertaken at Al-Qa’ida’s behest, it
did. See United States v. Tobin, 480 F.3d 53, 58 (1st Cir. 2007) (conspiracy
offense does not require that defendant actually commit the contemplated crime).
First, Mehanna made suggestions for improvements to the Al-Zawahiri video,
knowing that Al-Qa’ida had asked At-Tibyan to translate it. GX516. Second, he
translated the “Umar Hadid” video, knowing that At-Tibyan had obtained it prior
to its official release from Al-Qa’ida and around the same time that Al-Qa’ida had
asked At-Tibyan to translate the Al-Zawahiri video. See supra at 24-26. Viewed
in the light most favorable to the government, the jury could infer that Mehanna
translated “Umar Hadid,” knowing he was doing so at Al-Qa’ida’s behest.34
B. Mehanna’s Jury Instruction Challenges
Mehanna also challenges the jury instructions on First Amendment grounds.
Br. 47-53. The jury’s general guilty verdict does not eliminate such claims
because they allege “legal error.” Griffin, 502 U.S. at 58; Bachellar v. Maryland,
34The assumption that Mehanna translated only “publicly available” materials and that he placed his translations “on the Internet for the English-speaking world to see” is incorrect. See, e.g., CAR Br. 18. The “Umar Hadid” video, for example, does not appear to have been publicly available when Mehanna translated it. GX502; see 27/5, 28/71-84, 28/121-28. Moreover, At- Tibyan provided limited access to Mehanna’s translations for a supportive jihadi audience. See supra at 21; 27/42-43.
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397 U.S. 564, 570-71 (1970); United States v. Bailey, 405 F.3d 102, 109-10 (1st
Cir. 2005).
“Preserved claims of instructional error are assessed on appeal under a
bifurcated framework.” United States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012).
The Court “review[s] de novo questions about whether the instructions conveyed
the essence of the applicable law and review[s] for abuse of discretion questions
about whether the court’s choice of language was unfairly prejudicial.” Ibid.;
accord United States v. Allen, 670 F.3d 12, 15 (1st Cir. 2012). In either case, the
Court “look[s] to the challenged instructions in relation to the charge as a whole,
asking whether the charge in its entirety – and in the context of the evidence –
presented the relevant issues to the jury fairly and adequately.” United States v.
Stefanik, 674 F.3d 71, 76 (1st Cir.) (citation omitted), cert. denied, 132 S.Ct. 2118
(2012). A district court’s refusal to give a specific instruction is erroneous only if
the requested instruction was “(1) correct as a matter of substantive law, (2) not
substantially incorporated into the charge as rendered, and (3) integral to an
important point in the case.” United States v. Symonevich, 688 F.3d 12, 24 (1st
Cir. 2012). Even if a particular instruction was erroneous, reversal is not
warranted if the error was harmless. See Sasso, 695 F.3d at 29.
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1. No Instructional Error Occurred.
In keeping with HLP, the district court clarified the meaning of “material
support” in the following manner:
Now, this is important. Persons who act independently of a foreign terrorist organization to advance its goals or objectives are not considered to be working under the organization’s direction or control. A person cannot be convicted under this statute when he’s acting entirely independently of a foreign terrorist organization. This is true even if the person is advancing the organizations’s goals and objectives. Rather, for a person to be guilty under this count, a person must be acting in coordination with or at the direction of a designated foreign terrorist organization, here as alleged in Count 1, al-Qa’ida.
You need not worry about the scope or effect of the guarantee of free speech contained in the First Amendment to our Constitution. According to the Supreme Court, this statute already accommodates that guarantee by punishing only conduct that is done in coordination with or at the direction of a foreign terrorist organization. Advocacy that is done independently of the terrorist organization and not at its direction or in coordination with it does not violate the statute.
Put another way, activity that is proven to be the furnishing of material support or resources to a designated foreign terrorist organization under the statute is not activity that is protected by the First Amendment; on the other hand, as I’ve said, independent advocacy on behalf of the organization, not done at its direction or in coordination with it, is not a violation of the statute. 35/24-25.
Mehanna challenges this instruction on three grounds. First, he contends
that the district court should have instructed the jury (in accordance with his
Proposed Instruction No.7) that “the person must have a direct connection to the
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[terrorist] group and be working directly with the [terrorist] group” to violate
Section 2339B. Br. 49-50; see id. at 47 (government must prove that Mehanna
was “functionally within [Al-Qa’ida’s] command structure” or had “face-to-face”
meetings with Al-Qa’ida), see CCR Br. 18 (“direct (and likely sustained)
engagement with [an FTO]”); see also D376(25-27); 35/169 (preserving this
claim).
This argument fails because Mehanna’s proposed instruction was not
“substantively correct.” See United States v. David, 940 F.2d 722, 738 (1st Cir.
1991) (court may refuse to give incorrect, misleading or incomplete instruction).
To “coordinate” with an FTO, one need not “work[ ] directly with” the FTO or be
“told by the terrorist group itself to do the specific act.” D376(26) (proposed
instruction). “Coordination,” rather, can occur through intermediaries. Nothing in
the term “coordination” itself requires “direct contact,” and it would be a pointless
anachronism to insist on “face-to-face” engagement in an age when people often
work or socialize entirely over the internet. 26/135-36 (Al-Qa’ida increasingly
communicates over the internet).
Nor would Congress have intended such a result. To the contrary, limiting
Section 2339B only to instances where material support involves “direct contact”
with an FTO would largely gut the statute. And any prosecutions that remained
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would become hopelessly sidetracked into debates over how “direct” the
defendant’s contact with the FTO needs to be and who counts as a
“representative” of the FTO. See 26/130 (Al-Qa’ida has “become increasingly
decentralized” since 9/11).
Finally, Mehanna’s proposed instruction also conflicts with general
principles of criminal law, which do not allow a defendant to escape liability by
acting through an intermediary. See, e.g., United States v. Maloney, 71 F.3d 645,
650 (7th Cir. 1995) (upholding conviction of judge who accepted bribes through
“bag men”); United States v. Nestor, 574 F.3d 159, 161-62 (3d Cir. 2009) (use of
an adult intermediary to attempt to persuade a child to have sex does not provide a
defense).
Next, Mehanna argues that, by failing to further define “coordination,” the
district court permitted the jury to convict him “for the content of [his] speech,
even where there was no relationship to any FTO or terrorist.” Br. 50; see
NACDL Br. 7 (claiming this “prosecution ... effectively criminalized unpopular
thought”). This is incorrect. The court’s instructions required that, in order to
convict, the jury had to find that Mehanna conspired or intended to engage in
coordinated activity with Al-Qa’ida, and further explained that independent
advocacy on behalf of the FTO did not violate the law. This instruction conveyed
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the essence of the applicable law (as construed in HLP), precluded the jury from
convicting Mehanna based solely on proof that he translated Al-Qa’ida
propaganda, and protected his First Amendment rights.35
Moreover, the district court cannot be faulted for not further defining
“coordination,” given that Mehanna’s own attempts to do so ranged from wrong
(individual must be “told by the terrorist group itself to do the specific act”) to
worse (defendant must have a “contractual” or “employment” relationship with the
terrorist organization, i.e., “both a pre-arrangement and a quid pro quo”).
D376(19, 26). Indeed, had the district court provided examples of “coordinated”
services to include, say, translations for Al-Qa’ida at Al-Qa’ida’s behest,
Mehanna would undoubtedly have objected. In any event, there was no need to
further define “coordination” as this non-statutory term merely confirms the
common sense understanding of what rendering “services” “to” an FTO means.
HLP, 130 S.Ct. at 2722 (“[A] person of ordinary intelligence would understand the
term ‘service’ to cover advocacy performed in coordination with, or at the
35The Scholars’ Brief makes the unlikely claim (Br. 3) that this prosecution criminalizes activities in which they “regularly engage.” We doubt that these scholars regularly translate Al-Qa’ida propaganda in coordination with the terrorist organization itself, publish translations as joint productions with Al- Qa’ida, or release translations of Al-Qa’ida propaganda only on password- protected jihadi websites.
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direction of, a foreign terrorist organization.”).
Finally, Mehanna faults the district court for “direct[ing] the jurors not to
consider [his] First Amendment rights.” Br. 51. But the court’s First Amendment
instructions were entirely correct. The First Amendment is not a set of vague
ideals that individual jurors may interpret as they see fit; it is a source of law that
can be (and, here, has been) construed by the Supreme Court. Given HLP, the
district court correctly informed the jury that the line Section 2339B draws
between independent advocacy and coordinated activity is consistent with the First
Amendment.
2. Any Instructional Error Relating To Mehanna’s Propaganda Activities Was Harmless.
Where (1) the jury has been instructed on a single count on alternative
theories of guilt; (2) the instructions as to one theory are invalid; and (3) the jury
returns a general guilty verdict, the instructional error may nonetheless be
harmless. Hedgpeth v. Pulido, 555 U.S. 57, 60-62 (2008) (per curiam); see, e.g.,
Skilling v. United States, 130 S.Ct. 2896, 2934-35 (2010). In those circumstances,
reviewing courts conduct the same harmless-error analysis as when the trial court
fails to instruct on an element of an offense. Hedgpeth, 555 U.S. at 60-61 (citing
Neder v. United States, 527 U.S. 1 (1999)). Under that analysis, an instructional
error is harmless if it is “clear beyond a reasonable doubt that a rational jury would
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have found the defendant guilty absent the error[.]” Neder, 527 U.S. at 18. That
standard is satisfied if the evidence of guilt on a proper theory was
“overwhelming,” id. at 17, 19; United States v. Skilling, 638 F.3d 480, 483 (5th
Cir. 2011), cert. denied, 132 S.Ct. 1905 (2012), or if the jury’s verdicts on other
counts demonstrate that it found facts establishing the defendant’s guilt on the
properly instructed theory. See, e.g., United States v. Coppola, 671 F.3d 220, 237-
38 (2d Cir. 2012), cert. denied, 133 S.Ct. 843 (2013).
First, the government’s evidence regarding the Yemen trip – one of the
theories underlying Counts I-III – was “overwhelming.” See supra at 39-52.
Second, the jury’s verdict on Count VII confirms that it rejected Mehanna’s
defense that he went to Yemen to “check out” the Dar al-Mustafa school. Count
VII charged Mehanna with making materially false statements to the FBI
regarding (1) the purpose of the Yemen trip; (2) whether Mehanna, Abousamra
and Abuzahra planned the trip without assistance and entirely on-line; and (3)
whether Mehanna had visited Dar al-Mustafa. Moreover, because Section 1001
requires that a false statement be “material,” Count VII further alleged that
Mehanna traveled abroad “to find and receive military-type training at a terrorist
training camp and to thereafter participate in violent jihad and terrorism against
the United States.” D83(29). The jury’s guilty verdict on Count VII confirms
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that, consistent with the overwhelming evidence, it adopted the government’s
theory regarding the Yemen trip and rejected Mehanna’s defense.
Third, the jury also convicted Mehanna on Count IV, which charged that he
and Abousamra conspired to kill in a foreign country in violation of 18 U.S.C.
956. Like Count VII, Count IV had nothing to do with Mehanna’s propaganda
campaign. Moreover, Section 956 was one of the contemplated offenses for the
material support charges in Counts II and III. Given the evidence presented at
trial, the jury could not rationally have concluded that Mehanna and Abousamra
conspired to kill in a foreign country in violation of Section 956, but did not
conspire or attempt to provide material support to be used in preparation for, or in
carrying out, a Section 956 offense. For all these reasons, any instructional error
regarding Mehanna’s propaganda activities was harmless.
III. MEHANNA’S TRIAL ERROR CLAIMS LACK MERIT.
A. The District Court Properly Admitted Evidence Under Fed. R. Evid. 403.
Mehanna argues that the district court should have excluded certain
“inflammatory” evidence consisting mainly of the jihadist media that Mehanna
consumed and his online discussions of jihadist ideas. Br. 54-59 (citing Fed. R.
Evid. 403). But the district court was well within its discretion in admitting the
disputed evidence, which was highly probative of Mehanna’s intent to support Al-
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Qa’ida – the key issue in the case.
Under Rule 403, a district court may exclude relevant evidence if its
“probative value is substantially outweighed by the danger of unfair prejudice.”
United States v. Gentles, 619 F.3d 75, 87 (1st Cir. 2010). The lower court’s
balancing judgments under Rule 403 are “typically battlefield determinations” that
are afforded “great deference” on appeal. United States v. Shinderman, 515 F.3d
5, 16-17 (1st Cir. 2008); United States v. Tavares, 705 F.3d 4, 15-16 (1st Cir.
2013) (this Court defers to the district court’s balancing except in “extraordinarily
compelling circumstances”).
The gravamen of Mehanna’s claim is that the district court permitted the
jury to see too much of the jihadist media that Mehanna and his co-conspirators
read, watched, commented on, edited, translated, or produced. However, as the
district court found, all of that material was powerfully probative on the central
question before the jury: whether Mehanna and his co-conspirators intended to
support Al-Qa’ida and its attacks on U.S. troops in Iraq. Evidence that Mehanna
immersed himself in Al-Qa’ida propaganda, as well as evidence that he devoted
countless hours over many years to online discussions and promotion of his
jihadist opinions, corroborated the testimony of Abuzahra and others that
Mehanna shared Al-Qa’ida’s goals and that his actions – including his travel to
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Yemen and his media activity – were intended to support terrorism.
Mehanna’s defense made the details of his opinions on Islam, jihad,
terrorism, Iraq, and Al-Qa’ida and its leaders especially relevant. At trial,
Mehanna argued that, although he agreed with Al-Qa’ida that Muslims had the
right to defend their lands from invaders, he embraced moderate theories of Islam
(including the notion of Aman) that prevented him from fighting U.S. soldiers or
supporting terrorist attacks against civilians. See supra at 32. Given that nuanced
defense, the details of Mehanna’s actual beliefs were relevant.36 More directly,
this evidence demonstrated Mehanna’s devotion to Al-Qa’ida, his support for its
terrorist attacks both here and in Iraq, and his personal commitment to martyrdom
and jihad. It therefore made it more probable that he intended to aid Al-Qa’ida by
36Mehanna’s brief repeats the claim that his opinions, including his belief in Aman, were more moderate than Al-Qa’ida’s. Br. 7-8, 29, 31, 62. However, the evidence (much of it hearsay) regarding Mehanna’s differences of opinion with allegedly more extreme jihadists was equivocal, and focused principally on a dispute over which U.S. civilians Al-Qa’ida could justifiably murder – anyone who pays taxes (the extreme view), or only civilians who more directly support the U.S. presence in a Muslim land (Mehanna’s view). See, e.g., 14/89, 21/37-39, 25/34-37; GX419, 420. Moreover, Mehanna’s “moderate” Dr. Jekyll was dominated by his more extreme Mr. Hyde, who made numerous statements praising Al-Qa’ida’s indiscriminate murders of civilians. See supra at 8-11, 20 & n.14. Finally, even the “moderate” Mehanna never suggested that attacking U.S. troops in Iraq – the conduct involved in this case – was not legitimate, and never retracted, even in his allocution, his support for the “Mujahidin” fighting against U.S. soldiers overseas. D439/55-60.
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fighting in Iraq and by inspiring others to do the same.
Despite Mehanna’s contrary claims (Br. 54-56), evidence that he admired
Bin Laden and other Al-Qa’ida leaders, that his worldview was heavily influenced
by Al-Qa’ida’s State of the Ummah video and other propaganda, and that he
approved of 9/11 and other attacks all undermined his claim that he was
ideologically opposed to participating in jihad against U.S. soldiers and to
spreading Al-Qa’ida’s message. See United States v. El-Mezain, 664 F.3d 467,
509-10 (5th Cir. 2011) (upholding admission of evidence from defendants’
computers and premises that tended to show support for Hamas and undermine
claim that defendants were acting independently of Hamas, because “[e]vidence
which tends to rebut a defendant’s claim of innocent action is unlikely to be
unduly prejudicial”), cert. denied, 133 S.Ct. 525 (2012); cf. United States v.
McKeeve, 131 F.3d 1, 13-14 (1st Cir. 1997) (“Trials are meaty affairs, and
appellate courts should not insist that all taste be extracted from a piece of
evidence before a jury can chew on it.”). Also, as the district court noted, the
sheer volume of Mehanna’s propaganda and commentary was itself probative, as it
tended to show his “obsessiveness.” 25/104-07; see also 25/116, 26/81-82.
Mehanna asserts (Br. 57) that the district court allowed the trial to run “off
the rails.” To the contrary, the district court handled Mehanna’s trial with care and
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skill, and kept it well within permissible bounds. On numerous occasions, it
carefully balanced the probative value and danger for unfair prejudice of evidence
the defense claimed was inflammatory, considering both the effect of the
particular exhibit and the overall, cumulative effect of the admitted evidence. See,
e.g., 8/8, 10/7-9, 10/48-62, 12/4-21, 14/4-7, 21/4-11, 26/81-82. In considering the
evidence, the court entertained extensive argument from Mehanna on multiple
occasions and frequently required the government to establish the probative
purpose of a challenged exhibit by, for example, showing that Mehanna
specifically distributed, edited, or expressed approval of the material. See, e.g.,
10/49-59, 12/7, 17/98-107, 25/101. And, in some instances, the court either
excluded evidence or made clear that exhibits were admitted only after graphic or
potentially inflammatory content was redacted. See, e.g., 8/9-10 (redaction of
discussion about inferior status of women), 21/58 (excluding prejudicial language
about beheadings from Mehanna’s instant message), 21/10 (government’s
redaction of images of Zarqawi and of corpses minimized risk of unfair prejudice),
25/117 (requiring redaction of Abousamra’s comment about “rap[ing] a female
infidel”); see also 12/13, 12/18, 19/124-27.
Mehanna contends (Br. 56) that “thumbnail” images obtained from his
computer lack probative value because they might have been automatically saved
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by his web browser. But whether or not Mehanna deliberately downloaded these
images, their presence on his computer supports an inference that he frequented
and supported websites that carried them. 25/104 (district court concludes
thumbnails have “some value”); see El-Mezain, 664 F.3d at 509-10 (rejecting Rule
403 challenge to similar “thumbnail” images of Hamas violence on computers of
company accused of providing material support to Hamas); United States v. Abu
Jihaad, 630 F.3d 102, 113 n.12, 133-34 (2d Cir. 2010) (admitting terrorist videos
defendant had ordered and materials from websites he had visited as relevant to
motive and intent, even though defendant had not yet received the videos and
government could not prove he actually viewed the website materials). Mehanna
was free to – and did – argue that the thumbnails were not probative. In fact, he
presented an expert witness who explained how thumbnails are created, 33/15-16,
18, and dismissed them as irrelevant in his closing argument. 35/93 (thumbnails
are “tiny pictures” that “weren’t even downloaded”).37
37The thumbnails included approximately 30 photos of the World Trade Center on 9/11. 26/81-82. These images were not admitted to inflame the jury nor were they likely to do so. 10/52 (district court notes that these images were on “national TV” and suggests that “people are inured to [it] at this point”). Instead, they were admitted to prove Mehanna’s motive and intent. 26/82 (district court notes “the accumulation of repetitive images says something about the [defendant’s] state of mind”); see also 35/150 (government rebuttal closing: “We didn’t show you pictures of 9/11 to scare you. ... Who has 30 pictures of the planes crashing into the Towers? Is that Aman there?”).
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Mehanna argues (Br. 57) that the district court should have excluded an
email he sent to Masood and Abousamra linking a video (which the jury did not
see) showing Al-Qa’ida’s beheading of journalist Daniel Pearl. He contends that
this e-mail was sent more than a year before his group began concrete preparations
for the Yemen trip. Be that as it may, the email corroborated Masood’s testimony
that he, Mehanna, and Abousamra watched Al-Qa’ida videos as a group and
discussed ways they could personally participate in jihad. 14/25-35. And it cast
doubt on Mehanna’s claim that his own concept of jihad was limited to defending
the borders of Muslim nations. The probative value is clear, and the potential for
unfair prejudice, as the district court found, was low because the video itself was
not shown. 14/5-7. Mehanna is similarly mistaken (Br. 57) in contending that
videos he watched and discussed in the spring of 2006 lacked probative value.
Even if those videos did not tend to shed light on Mehanna’s intent when he
traveled to Yemen in 2004, and even assuming they were not properly admissible
to prove the material support allegations related to Mehanna’s media activities, the
evidence was still probative to show that in 2006 Mehanna and Abousamra
continued their conspiracy to go abroad and fight after returning from Yemen and
Iraq. See supra at 18.
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The district court’s evidentiary rulings were entirely consistent with rulings
in other terrorism-related cases. This and other courts have regularly upheld
district courts’ discretion to admit evidence of terrorist propaganda videos and
other terrorism-related materials in order to prove the defendants’ knowledge,
intent, and motive, including in cases, unlike this one, where the defendants had
no intention to conduct or support a terrorist group’s violent activities. See, e.g.,
United States v. Felton, 417 F.3d 97, 101-02 (1st Cir. 2005) (probative value of
propaganda materials showing defendants’ white-supremacist views was not
substantially outweighed by its risk of prejudice, because “[u]nfortunately for the
defendants, evidence of their beliefs and associations was highly relevant”);
Mubayyid, 658 F.3d at 56, 72-73 (rejecting defendant’s claim that evidence filled
with “blood curdling” advocacy of “violent jihad” was so “extensive,
inflammatory, and prejudicial” as to require reversal); El-Mezain, 664 F.3d at 507-
11 (upholding admission of evidence related to Hamas violence including
videotapes, photographs, posters, and images found on computers as relevant to
defendants’ intent to support Hamas); Abu-Jihaad, 630 F.3d at 133-34 (pro-
jihadist videos, including depictions of violence, were probative of defendant’s
intent and not unduly prejudicial); United States v. Salameh, 152 F.3d 88, 110–11
(2d Cir. 1998) (video depicting embassy bombing and instructions for making
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explosives was relevant to motive and nature of conspiratorial agreement); United
States v. Hammoud, 381 F.3d 316, 342 (4th Cir. 2004) (affirming admission of
videotapes depicting Hizballah military operations and rallies as probative of
defendant’s knowledge of group’s unlawful activities and his motives in raising
funds for it); United States v. Benkahla, 530 F.3d 300, 309-10 (4th Cir. 2008)
(upholding admission of numerous videos and photographs over defendant’s claim
that the evidence was “well beyond” what was necessary to establish materiality of
false statements: “lengthy testimony about various aspects of radical Islam was
appropriate, and indeed necessary, for the jury ‘to understand the evidence,’ and
‘determine the fact[s].’”).
Mehanna’s reliance on United States v. Al-Moayad, 545 F.3d 139 (2d Cir.
2008) is misplaced. Br. 57-58. In Al-Moayad, the Second Circuit held that the
district court should have excluded a witness’s description of his experiences at an
Al-Qa’ida training camp, including footage of Bin Laden visiting the camp,
because there was no connection between the witness and the defendant and the
witness went far beyond his proffered purpose of merely authenticating a
document. Id. at 163. Moreover, the Second Circuit noted that the district court
failed to conduct any analysis of the evidence’s probative value or to balance it
against the potential for unfair prejudice. Al-Moayad is thus inapplicable: the
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evidence there, unlike here, had virtually no discernible probative value, and the
district court did not engage in any discretionary balancing to which the court of
appeals could defer.38
Finally, even if some of this evidence should have been excluded, any error
was harmless in light of the separate and overwhelming evidence of the purpose of
Mehanna’s Yemen excursion, including the mutually corroborating testimony of
co-conspirators Abuzahra, Masood, and Pippin. See supra at 41-43; see also
supra at 26-28, 31 (overwhelming evidence of false statement conviction related
to Maldonado).
B. No Brady Violation Occurred.
Mehanna claims (Br. 61-63) that the district court should have required the
government to produce evidence that he refused to engage in criminal acts when
solicited by a government agent. See also D439/56 (Mehanna claims at
sentencing that “the government ... sent an undercover agent to try to ensnare me
in one of their little fake terror plots, and I refused”). The government has
repeatedly denied that any such evidence exists, most recently when Mehanna
38Mehanna contends (Br. 57-58) that the district court should have excluded any evidence that involved conduct more inflammatory than the charged crimes. However, as the case Mehanna cites makes clear, that principle is one of the factors courts consider in weighing admissibility of evidence of prior bad acts by the defendant. See United States v. Paulino, 445 F.3d 211, 223 (2d Cir. 2006).
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unsuccessfully moved this Court to release transcripts of ex parte conversations
between the government and the district court. Government Opposition filed
10/25/12. After conducting an in camera review, the district court found that no
evidence relevant to defendant’s request was “discoverable under Brady v.
Maryland, 373 U.S. 83 (1963).” D224.
This ruling should be affirmed. Brady held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment.” 373 U.S. at 87.
Evidence is material “when there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been different.” Smith v.
Cain, 132 S.Ct. 627, 630 (2012) (citation omitted).
In connection with Mehanna’s motion in this Court, the government has
already submitted under seal information relating to Mehanna’s Brady claim. That
sealed submission (which the government incorporates by reference) confirms that
the district court did not abuse its discretion in rejecting Mehanna’s discovery
request. See United States v. Innamorati, 996 F.2d 456, 488 (1st Cir. 1993)
(finding no Brady violation after reviewing sealed materials); see also United
States v. DeCologero, 530 F.3d 36, 65 (1st Cir. 2008) (abuse of discretion
standard applies to Brady claims).
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C. The District Court Did Not Abuse Its Discretion In Excluding Expert Testimony.
1. Background
The district court permitted Mehanna to offer testimony of six expert
witnesses. On appeal, Mehanna argues that the court abused its discretion in
excluding testimony from two more experts who, Mehanna claims, would have
undermined the substance of and methodology underlying opinions of government
expert Evan Kohlmann. The district court acted well within its discretion in
excluding these experts, whose testimony was cumulative and, at most, marginally
relevant.
Durlauf: Mehanna argued that he should be permitted to offer testimony
from defense expert Dr. Durlauf, who would present mathematical formulas
purportedly showing that Kohlmann’s method for defining who was an Al-Qa’ida
adherent was inconsistent with scientific standards. 29/21-23. The district court
excluded Durlauf’s testimony, noting initially that the affidavit through which
Mehanna had provided the required notice of expert testimony did not “come[]
close” to adequately summarizing the proffered testimony. 29/23. The court
further concluded that Durlauf’s testimony did not satisfy the “fit” requirement of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because
Kohlmann did not claim that his conclusions about who was an Al-Qa’ida
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adherent were based on the kind of strict “experimental science” standards that,
according to Durlauf, Kohlmann’s work failed to satisfy. 29/24.
Williams: Mehanna claimed that Williams would have rebutted Kohlmann
by testifying about the relative ineffectiveness of jihadi videos in generating
recruits for Al-Qa’ida, and by opining that the purpose of such videos was not to
recruit jihadists but to improve Al-Qa’ida’s image and “provide[] for young
Muslims a sense of winning.” 32/148.39 The district court concluded that this
testimony would not be helpful because, regardless of whether the videos actually
succeed in generating recruits, producing videos for general propaganda and
morale purposes is still “material” support. 32/146, 32/149.
2. Discussion
This Court reviews the district court’s rulings for abuse of discretion only.
See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141-42 (1999); United States v.
Shay, 57 F.3d 126, 132 (1st Cir. 1995) (decision to exclude expert testimony
afforded “great deference”).
39Contrary to Mehanna’s claim (Br. 59), Kohlmann did not “opine that reviewing a video in English is substantially likely to cause actual recruits to join al Qa’ida.” He testified (1) that Al-Qa’ida issues calls for support (money, weapons, recruits, terrorist acts, translation services ...) through videos and other media, 26/139-41, 27/4, 27/14; and (2) that, without English language versions of these materials, Al-Qa’ida can’t have “an effective recruitment, propaganda or communications strategy.” 27/107.
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Under Daubert, a trial court considering whether to admit expert testimony
under Federal Rule of Evidence 702 must determine, among other things, whether
the proffered testimony is sufficiently closely tied to the facts that it will “assist
the trier of fact.” 509 U.S. at 591-93. For the testimony to “fit” the facts and
issues in the case, there must be “a valid connection” between “the expert’s
testimony and a disputed issue.” Shay, 57 F.3d at 132-33 & n.5.
Here, it was within the district court’s discretion to find that Durlauf’s
opinion – that Kohlmann’s method for determining who was an Al-Qa’ida
adherent fell short of the mathematical precision of experimental science – did not
“fit” the evidence, because Kohlmann did not claim that his work was scientific in
that sense. See 26/112-15 (Kohlmann describing his method of reviewing and
comparing sources as a “comparative analysis form of social science”).
Similarly, the court reasonably excluded Williams’s testimony about the
effectiveness of jihadi videos as a recruiting tool. Whether these videos were
effective as a recruitment tool did not matter given that (1) Al-Qa’ida used them
for this purpose (whether wisely or not); and (2) it was undisputed that Al-Qa’ida
also considered them useful for other purposes, including propaganda and
boosting morale. 34/113. In addition, Williams’s testimony had no bearing on
whether Mehanna intended to provide material support by helping Al Qa’ida to
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produce these videos – and that is the relevant question where, as here, the
material support counts charge conspiracy, attempt, or aiding and abetting.
In any event, the excluded expert testimony was cumulative – and any error
in excluding it was harmless – because other defense experts, particularly Dr.
Marc Sageman, provided expert testimony on both of these issues. Sageman
aggressively dismissed Kohlmann’s methods, contrasting his own scientific
approach with what he described as Kohlmann’s results-oriented collection of
anecdotes. See, e.g., 34/130-31 (“I test [my theories] on different independent
databases” while Kohlmann “tells stories”). Mehanna contends (Br. 59) that he
needed Durlauf’s testimony to refute Kohlmann’s alleged reliance on the
“comparative analysis form of social science,” but Sageman directly made that
point. See 34/46 (testifying that, while Sageman himself properly conducted
comparative analysis according to social scientific standards, Kohlmann merely
“accumulates cases”). Sageman also identified himself as an “expert” on the
“effect” of Al-Qa’ida propaganda videos, 34/114, and made the same points about
the videos’ purposes and limited effectiveness, especially as a recruiting tool, that
Williams would have made. See 34/80-89, 113-117.40 Thus, assuming that the
40In closing argument, Mehanna emphasized Sageman’s criticisms of Kohlmann as a “storyteller,” as well as Sageman’s opinion about the ineffectiveness of the videos. 35/102-04.
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actual effectiveness of videos as a recruitment tool mattered, the defense experts
who testified at trial addressed this point.
IV. MEHANNA’S LIES ABOUT MALDONADO WERE MATERIAL.
In Count VI, the jury convicted Mehanna of making false statements to
federal agents concerning Maldonado’s whereabouts and terrorist activities, in
violation of 18 U.S.C. 1001(a)(2). Section 1001 prohibits “knowingly and
willfully… mak[ing]… materially false, fictitious, or fraudulent statement[s] or
representation[s]” to the government. Mehanna concedes (Br. 64, 67) that he
knowingly lied to FBI agents but claims that his statements were not material
because the FBI knew they were false. Existing law forecloses this claim.41
The test for materiality is “well-settled.” United States v. Sebaggala, 256
F.3d 59, 65 (1st Cir. 2001). A false statement is material when it “ha[s] a natural
tendency to influence, or [is] capable of influencing, a governmental function.”
Id. A false statement may have the “natural tendency to influence” even if there is
no possibility that it will have any actual influence. See United States v. Edgar, 82
F.3d 499, 510 (1st Cir. 1996) (false statements on worker’s compensation forms
were material even though the forms were filed late and therefore could not
41This argument was preserved below, D187, D379, and is subject to de novo review. United States v. Stevens, 640 F.3d 48, 51 (1st Cir. 2011).
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influence the agency’s decision); see also Kungys v. United States, 485 U.S. 759,
771 (1988) (rejecting a test based on the probability of actual influence). Rather,
the “natural tendency to influence” depends on “the intrinsic capabilities of the
false statement itself[.]” United States v. Service Deli Inc., 151 F.3d 938, 941 (9th
Cir. 1998) (citation omitted); accord United States v. McBane, 433 F.3d 344, 350-
51 (3d Cir. 2005) (false statements are material if they “would naturally tend to
influence a reasonable decisionmaker”).
False statements provided to a federal agent regarding the subject of an
investigation are, by their very nature, capable of negatively influencing the
investigation. Brogan v. United States, 522 U.S. 398, 401-02 (1998); see, e.g.,
United States v. Turner, 551 F.3d 657, 664 (7th Cir. 2008) (attempt to misdirect
agents through false statements was “enough to satisfy the materiality requirement
of [Section] 1001”); McBane, 433 F.3d at 352 (same). The law, thus, does not
excuse Mehanna’s lies simply because they failed to sidetrack the government’s
investigation. See, e.g., United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir.
2011); United States v. Najera Jimenez, 593 F.3d 391, 400 (5th Cir. 2010); United
States v. White, 270 F.3d 356, 365 (6th Cir. 2001); United States v. Neder, 197
F.3d 1122, 1128 (11th Cir. 1999); see also Brogan, 522 U.S. at 402 (“[M]aking
the existence of this crime [i.e. Section 1001] turn upon the credulousness of the
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federal investigator (or the persuasiveness of the liar) would be exceedingly
strange.”).
Mehanna acknowledges none of this law. Instead, he cites two district court
cases and a Ninth Circuit decision, all decided before 1974. Br. 66. These
authorities are not current. See, e.g., United States v. Hirst, 2012 WL 3583044, at
*3-*4 (N.D. Cal. Aug. 20, 2012) (noting that United States v. Bedore, 455 F.2d
1109 (9th Cir. 1972), on which Mehanna relies, was “abrogated” by Brogan).
Mehanna contends (Br. 65-66) that this settled interpretation of Section
1001 exceeds “the original purpose of the statute” and allows federal agents to
manipulate citizens into lying so as to give “law enforcement leverage.” The
Supreme Court rejected the same arguments in Brogan, concluding that any
argument that Section 1001 sweeps too broadly was best directed to Congress.
522 U.S. at 400, 405 (“By its terms, [Section] 1001 covers ‘any’ false statement…
‘of whatever kind.’”) (citation omitted).
V. MEHANNA’S “SPILLOVER” CLAIM LACKS MERIT.
Mehanna argues (Br. 68-69) that if some of his convictions are reversed, all
must be reversed due to “prejudicial spillover from evidence.” This argument
does not appear to add anything to his Rule 403 claim, see supra at 77-86, as
Mehanna fails to identify any evidence that was relevant to some counts of
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conviction but not others. In fact, evidence that Mehanna and his group immersed
themselves in violent propaganda (the principal subject of the Rule 403 claim)
related to all counts and demonstrated Mehanna’s intent with respect to the Yemen
trip and his media activities. Accordingly, Mehanna fails to prove any
“prejudicial spillover” of evidence from one count to another, let alone “prejudice
so pervasive that a miscarriage of justice looms.” United States v. Trainor, 477
F.3d 24, 36 (1st Cir. 2007).
VI. MEHANNA’S BELOW-GUIDELINES SENTENCE SHOULD BE UPHELD.
A. The Sentencing Proceeding
A presentence report (PSR) prepared by the Probation Office used the 2011
Guidelines Manual. It grouped all seven counts of conviction together and
assigned the group a base offense level of 33. (Counts II, III and IV started with a
base offense level of 33 under Guidelines § 2A1.5 (conspiracy to commit
murder)). See Guidelines Ch.3, Pt.D (Grouping Rules); PSR ¶¶ 68, 69, 80, 89,
97B, 98, and 107. After applying various adjustments, the PSR assigned Mehanna
a total offense level of 53, PSR ¶¶ 78, 88, 97, 97(J), 106, 116, which it then
reduced to 43 (the highest level in the Guidelines chart) pursuant to Guidelines §
5, Part A, n.2. These calculations resulted in a Guidelines sentencing range of life
imprisonment. PSR ¶ 182.
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Mehanna objected to the PSR on the ground that, because his Yemen trip
occurred in February 2004, the 2003 manual should apply. PSR 59. Applying the
2003 manual would have reduced the base offense level for Counts II, III, and IV
from 33 to 28.
At the April 12, 2012 sentencing hearing, the district court concluded that
using the current manual did not violate the Ex Post Facto Clause. D439(8). It
then determined that Mehanna’s total offense level for Counts II, III, and IV was
47, less than the PSR’s calculation of 53 because it found a six-level enhancement
where the intended victims were government employees (Guidelines §
3A1.2(a)(1)(A)) to be inapplicable. D439(7-9). The district court’s calculations
still resulted in a Guidelines sentencing range of life imprisonment.
Before the district court pronounced sentence, Mehanna allocuted.
D439(47-60). He explained that, since his early exposure to Batman comic books,
he viewed the world through a simple paradigm: oppressors vs. oppressed.
D439(49). Mehanna saw “what was happening to Muslims” through this lens.
D439(52). He then blamed America for supporting Israel and blamed the 9/11
attacks on American economic sanctions that had killed Iraqi children. D439(52-
53). Mehanna recited atrocities committed by U.S. soldiers, and described “Islam”
as “one large body who must protect each []other.” D439(53-54). He mocked his
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trial as “childish bickering” over his translation activities and criticized America’s
“mentality of colonialism,” which “trickles down to everyone,” including “my own
lawyers.” D439(55-57). He also questioned the impartiality of his jury.
D439(58). Finally, Mehanna stated that “this business of ... who is and isn’t a
terrorist” is “subjective,” and reaffirmed “support” for the “mujahedin.”
D439(59).
In reviewing the factors in 18 U.S.C. 3553(a), the district court concluded
that Mehanna’s conduct “warrant[s] a substantial criminal sanction,” D439(64),
and that both retribution and deterrence were “significant [interests] in this case.”
D439(65). The court found Mehanna’s “history and characteristics” a
“confounding factor,” and noted that Mehanna had become “consumed with a
religious enthusiasm that was at once partly admirable and partly horrifying.”
D439(65). In addressing the need to protect the public from future crimes, the
court noted its concern with Mehanna’s “quality of defiance” and his “absence of
remorse notwithstanding the jury verdict.” D439(67).
The district court then concluded that the Sentencing Guidelines did not do
“an adequately reliable job in balancing the relevant sentencing factor[s]” because
they failed to address “the unique facts of the given case.” D439(68-70)
(criticizing 12-level terrorism adjustment and the automatic assignment of CHC
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VI). After engaging in a calculation which adjusted the Guidelines to eliminate
“the principal defects” it had identified, the district court derived a “hypothetical
or ‘ghost’ guideline” of 168-210 months (Level35/CHC(I)), which, it concluded,
eliminated unwarranted disparities with similar defendants. D439(72-73). The
district court then imposed a below-Guidelines sentence of 210 months on Count
IV, and concurrent sentences of 180 months on Counts I-III, and 60 months on
Counts V-VII. D439(74).
B. Discussion
Mehanna’s claim (Br. 70-71) that his sentence violates the Ex Post Facto
Clause has no merit. This Court reviews this constitutional challenge de novo.
United States v. Goergen, 683 F.3d 1, 3 (1st Cir. 2012). The Sentencing
Guidelines provide that the district court should apply the Guidelines manual in
effect at the time of sentencing, unless doing so would raise ex post facto
concerns. Guidelines § 1B1.11(a) & (b)(1); United States v. Rodriguez, 630 F.3d
39, 42 (1st Cir. 2010). Mehanna’s sentence raises no such concerns, for several
reasons.
First, the record refutes the factual foundation of Mehanna’s claim.
Mehanna asserts (Br. 70) that a November 2004 amendment to Guidelines § 2A1.5
could not constitutionally be applied to his sentence on Counts II-IV because his
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return from Yemen in February 2004 effectively terminated his participation in the
conspiracy to attack U.S. soldiers overseas. He fails to note, however, that the
offenses charged in Counts II and III also involved his 2005-2006 propaganda
campaign. But even setting that aside, after their return from Yemen, Mehanna
and Abousamra continued to conspire to fight abroad with Al-Qa’ida against
Americans. See supra at 18. Because Mehanna’s conspiracy continued after
November 2004, application of an amendment adopted on that date raises no ex
post facto concerns.
Second, even if the conduct underlying Counts II, III, and IV ended before
November 2004, the conduct underlying Counts V, VI, and VII – including
making and conspiring to make false statements to cover up the purpose of the
Yemen trip – occurred, inter alia, in December 2006. When a defendant commits
multiple offenses that predate and postdate a revision of the Guidelines, the “one-
book rule” requires the district court to apply the version in effect when the
defendant committed the latest offense. Guidelines § 1B.11(b)(2)-(3); see also
United States v. Gilman, 478 F.3d 440, 449-50 (1st Cir. 2007) (rejecting ex post
facto challenge to “one-book rule”).
Mehanna argues (Br. 71) that his other offenses were not sufficiently
“related” to the Yemen conduct for application of the one-book rule. But that
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argument cannot be squared with United States v. Cruzado-Laureano, 404 F.3d
470, 488 (1st Cir. 2005). In that case, the Court held that the proper Guidelines
manual for ex post facto purposes was the one in effect at the time the defendant
tampered with a witness, even though all the conduct (which the tampering was
intended to conceal) underlying other counts of conviction antedated that version.
Ibid. Moreover, the overwhelming majority of other circuits have held that the
one-book rule does not violate the Ex Post Facto Clause where, as here, the rule is
applied to a series of offenses that are properly “grouped” under the Guidelines.
See, e.g., United States v. Siddons, 660 F.3d 699, 707 (3d Cir. 2011); United States
v. Weiss, 630 F.3d 1263, 1277-78 (10th Cir. 2010); United States v. Kumar, 617
F.3d 612, 624-31 (2d Cir. 2010) (collecting cases from the Fourth, Fifth, Seventh,
Eighth, and Eleventh Circuits); but see United States v. Ortland, 109 F.3d 539,
547 (9th Cir. 1997).42
Finally, any error in applying the more recent Guidelines was harmless
because the district court would have imposed the same sentence in any event.
United States v. Tavares, 705 F.3d 4, 27-28 (1st Cir. 2013). The court’s
42The government recently argued in the Supreme Court, see Peugh v. United States, No. 12-42 (argued Feb. 26, 2013), that the now-advisory Sentencing Guidelines present no ex post facto concerns. If this position prevails, it further forecloses Mehanna’s claim.
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calculations yielded an advisory Guidelines sentence of life, D439(11-12), while
application of the 2003 Guidelines would have resulted in a Guidelines range of
360 months to life. The district court clearly stated that the Guidelines, in its
view, were not a “reliable” measure in this case, and the sentence the court
imposed was based not on a departure from that range but on an independent
analysis of the sentencing factors in Section 3553A. D439(12, 61-73).
Accordingly, the court considered the parties’ arguments and evidence regarding
an appropriate sentence vis-a-vis those factors – including Mehanna’s “absence of
remorse” and “defiance” (which his allocution amply demonstrated) – and
imposed a sentence of 210 months. D459(59, 69, 74). It is true that, in exercising
its discretion under Section 3553A, the court considered the amended version of
Guidelines § 2A1.5 in a “hypothetical” Guidelines calculation, D459(73), but this
Court has made clear that consulting post-offense Guidelines revisions in this
manner does not implicate ex post facto concerns. Rodriguez, 630 F.3d at 42.
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CONCLUSION
For the reasons discussed above, the judgment of the district court should be
affirmed.
Respectfully submitted,
CARMEN M. ORTIZ MYTHILI RAMAN United States Attorney Acting Assistant Attorney General District of Massachusetts Criminal Division
JOHN P. CARLIN DENIS J. MCINERNEY Acting Assistant Attorney Acting Deputy Assistant Attorney General General Criminal Division National Security Division s/ Elizabeth D. Collery JEFFREY D. GROHARING ELIZABETH D. COLLERY Attorney Attorney, Appellate Section National Security Division Criminal Division U.S. Department of Justice s/ Joseph F. Palmer 950 Pennsylvania Ave., N.W., Room 1264 JOSEPH F. PALMER Washington, DC 20530 Attorney (202) 353-3891 National Security Division [email protected] U.S. Department of Justice
Date: April 5, 2013
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CERTIFICATE OF COMPLIANCE
In accordance with Fed. R. App. P. 32(a)(7)(C), the undersigned counsel of
record certifies that the foregoing Brief for the United States was prepared in a 14-
point, proportionally spaced, serif font (Times New Roman), using WordPerfect
X4; the brief contains 22,372 words; and, accordingly, the brief complies with the
requirements of Fed. R. App. P. 32(a)(7) and this Court’s order of April 1, 2013,
granting the government leave to file an oversized brief not to exceed 22,500
words.
s/ Elizabeth D. Collery ELIZABETH D. COLLERY Attorney, Appellate Section Criminal Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 1264 Washington, DC 20530 (202) 353-3891 [email protected]
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CERTIFICATE OF SERVICE
I certify that on April 8, 2013, I electronically served a copy of the foregoing Brief for the United States on the following registered participants of the CM/ECF system:
Janice Bassil, Esq. J. W. Carney, Jr., Esq. Carney & Bassil 20 Park Plaza, Suite 1405 Boston MA 02116-0000 (Counsel for Defendant Tarek Mehanna)
Peter Sabin Willett, Esq. Bingham McCutchen, LLP One Federal Street Boston, MA 02110-1726 (Counsel for Defendant Tarek Mehanna)
Matthew R. Segal Sarah R. Wunsch American Civil Liberties Union of Massachusetts 211 Congress Street Boston, MA 02110 (Counsel for Amicus Curiae American Civil Liberties Union of Massachusetts)
Alex Abdo American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 (Counsel for Amicus Curiae American Civil Liberties Union Foundation)
Pardiss Kebriaei Center for Constitutional Rights 666 Broadway, 7th Floor
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New York, NY 10012 (Counsel for Amicus Curiae Center for Constitutional Rights)
Joshua Rosenkranz Orrick, Herrington & Sutcliffe LLP 51 West 52nd Street New York, NY 10019 (Counsel for Amici Curiae Scholars, Publishers and Translators in the Fields of Islam and the Middle East)
Nancy Gertner Professor of Law Griswold 301 1525 Massachusetts Avenue Cambridge, MA 02138 (Counsel for Amicus National Association of Criminal Defense Lawyers)
s/ Elizabeth D. Collery ELIZABETH D. COLLERY Attorney, Appellate Section Criminal Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., Room 1264 Washington, DC 20530 (202) 353-3891 [email protected]
-105- Case: 12-1461 Document: 00116514022 Page: 118 Date Filed: 04/08/2013 Entry ID: 5724362
ADDENDUM Case: 12-1461 Document: 00116514022 Page: 119 Date Filed: 04/08/2013 Entry ID: 5724362
US v. Tarek Mehanna, No. 12-1461
Chart of Identities
Tarek Mehanna
o Abu Sabaayaa (Tr. 6-14) o Sayf Maslool (Tr. 8-22) o Ibnul_Khattab82 (Tr. 12-25) o Aboo Sabaayaa (Tr. 16-79) o [email protected] (Tr. 17-72)
Ahmad Abousamra
o [email protected] (GX 350) o [email protected] (Tr. 15-92) o Abu Hurarah (Tr. 16-34) o Abu Fadl (Tr. 20-19) o Ahmad Shukri (Tr. 20-86) o Shukri al-Fadl (Tr. 20-95)
Kareem Abuzahra
o Ibn Abishaiba (Tr. 23-77) o Prof (23-100)
Hassan Masood
o [email protected] (GX 350)
Daniel Maldonado
o Umm Muhammad (Tr. 18-22)
Jason Pippin
o Abu Omar (Tr. 3-56) o Abul Muthanna (Tr. 15-57) o Abu Umar (Tr. 16-80)
Daniel Spaulding
o Brother Mujahid (Tr. 20-18) Case: 12-1461 Document: 00116514022 Page: 120 Date Filed: 04/08/2013 Entry ID: 5724362
Omar Hammami
o al-Mizzi (Tr. 3-51) o Alexander Buddy (Tr. 17-72) o [email protected] (17-72)
Tariq al-Daour
o Abu Dujanah (Tr. 15-62)
Younis Tsouli
o Irhaby007 (Tr. 13-11)
Waseem Mughal
o Ismiyy (Tr. 13-17) o yesyes (Tr. 13-20)
Ehsanul Sadequee
o [email protected] (Tr. 6-59) o Khubayb al-Muwahhid (Tr. 13-19) o Abu Khubayb (Tr. 21-101)
Abu Mahmoud al-Muraabit
o [email protected] (Tr. 13-24) o Abu Mu’ndhir (Tr. 35-74)